Gauche v. Mayer

Breese, J. To entitle a person to maintain an action of trespass, he must, at the time when the act, constituting the trespass, was done, either have the actual possession in him of the thing which is the object of the trespass, or else he must have a constructive possession, by reason of the right or title to the thing being actually vested in him, such title or right, drawing after it, a constructive possession. If the general owner parts with his possession, and the bailee, at the time when the injury was committed, has a right exclusively to use the thing, the inference of a constructive possession is rebutted, and the general owner cannot maintain trespass, his possession being in reversion only. The action is founded on possession, or on such a title as draws after it a constructive possession. What are the facts in this case ? The goods in question had been deposited by the plaintiff, a resident of St. Loui§, with the firm of Bolin & Belt, of Belleville, to sell on a certain stipulated commission, but within no specified time. The firm made sale of some of the goods, and having sold out their concern to Bates, he agreed to sell the remainder on the same terms that Bolin & Belt had stipulated. Soon after this sale, Bates being in possession of the goods, an execution against Bolin & Belt was levied, by the defendant, as sheriff of St. Clair county, on them, he being informed at the time, both by Bolin and by Bates, that they were the goods of the plaintiff, and not the property of Bolin & Belt, or of either of them. The goods were taken by the sheriff and sold, and this action of trespass brought by the owners. On the trial, it was proved by Bates, that he had agreed with the plaintiff, some weeks before the levy, to sell these goods at auction for a commission of ten per cent. He states he understood the contract with the plaintiff to be, that he could return the goods at any time, and that plaintiff could have called for them at any time.. At a separate examination' of this witness by the court, on the following day, the court stating, that his decision would turn on the nature of the contract the witness had made with the plaintiff, the witness stated, there was nothing said specially about the keeping the goods, or the right of plaintiff to call for them at any time—he took the goods on general commission to sell for the plaintiff. This the court deemed sufficient evidence, to rebut the claim of a right of possession in the plaintiff, and accordingly decided that he could not maintain his action of trespass. It is undoubtedly true, that Bates, the bailee of these goods, might have maintained trespass against the defendant for taking the goods out of his actual possession—trespass being founded on possession. But does it follow, that the real owner might not also maintain the' action? The defendant was a wrong-doer, both as it regards the bailee, and the real owner of the goods, though the force was actually against the bailee’s possession. The question then is, had the plaintiff, by reason of his being the real owner of the goods, such a constructive possession as to enable him to maintain trespass ? To answer this, we must inquire, was there any bar to his taking actual possession? Was there any subsisting right or claim to the goods in any other person, sufficient to override or postpone the right of plaintiff to the possession of the goods at the time of the levy ? We cannot find from the testimony, that any such 'bar existed, or that there was anything in the way to prevent the plaintiff from taking immediate possession, at the time of the levy. The bailee sets up no claim for storage, commissions, or any lien whatever upon the goods, and according to his view of the contract, though nothing special was said about it, the plaintiff had a right to repossess himself of the goods whenever he pleased, and so had the bailee the right to return them, whenever he thought proper. The defendant is a stranger to the goods and a wrong-doer, and it does not rest with him to say, that the bailee had a lien on the goods, when the bailee disclaims any such lien, and proofs show that the bailee had no claim of any kind upon the goods. We think then, the plaintiff being the real owner of the goods, and having the right, at the time of the levy and exportation of the goods, to have the immediate possession of them, can maintain trespass against a stranger and wrongdoer for taking them and carrying them away. The case of Cannon v. Kinney, 3 Scam. 10, and cases there cited, sustain the view we have taken of this case. It is urged, however, by the defendant, that the bill of exceptions does not purport to contain all the evidence in the cause. This court has repeatedly decided, that if the bill of exceptions does not contain all the evidence, the ruling of the court on a motion for a new trial will not be considered. This is, undoubtedly, the general rule and a salutary one; but when a record discloses the fact that the cause was tried by the court without a jury, and the judge certifies that he based his decision on one part of the testimony only, and that part is decisive of the case, this court, it would seem, could inquire into the propriety of the decision on that testimony, it being fully stated in the bill of exceptions and made the turning point of the judgment. There is no serious question made about any other point in the cause. The judgment of the court below is reversed, and the cause remanded, with directions to award a new trial. Judgment reversed.