Robison v. Hardy

McAllister, P. J. The declaration of the plaintiffs in this case contains but one count. While the count is inartificially drawn and not in conformity with the usual precedents, yet the matters alleged constitute it a count in trover and for no other cause of action. Besides, the case was tried and given to the jury upon the theory that the action was trover "for the wrongful conversion by the defendants of 40,000 bushels of flaxseed of plaintiffs. The propriety of the instructions to the jury given by the court must therefore be determined with reference to that action. The court instructed the jury that in order to entitle the plaintiffs to recover they must prove: First, that the defendants had the flaxseed of plaintiffs in their possession; second, that defendants wrongfully sold or disposed of the seed and applied it to their own use; and these two things must be established by the plaintiffs by a preponderance of the evidence. Then the court directed the jury, that if the defendants executed the contract dated November 30, 1883, and- afterward sold the seed or applied it on their own contracts and did not deliver it to plaintiffs when demand was made therefor, at the time it should have been delivered under the terms of the agreement of November 30, 1883, but refused to deliver the same, then the plaintiffs were entitled to recover, providing the proof showed that navigation was then opened. These instructions purport to direct the jury as to all the essentials of a right of recovery, but wholly omit to state anything respecting the necessity of a right of immediate possession in the plaintiffs at any of the times referred to or respecting any payment or tender at the time of demand or any other time, of the money which, by said agreement, plaintiffs were bound to pay defendants as a condition to their right of possession, or respecting any offer or readiness or ability to pay, or of any waiver by defendants of such performance on the part of plaintiffs. It is clear from the .evidence that the plaintiffs had no right to the immediate possession of the seed in question at any time down to the period of the opening of navigation, in the spring of 1884; and without payment or tender of the price, expenses, etc., such right did not then accrue. Bloxan v. Sanders, 4 Barn. & Cres. 941. It is essential to the right of recovery in trover that the plaintiff have a right to the immediate possession of the goods at the time of the conversion. Eisendrath v. Knauer, 64 Ill. 396; Caldwell v. Corwin, 9 Yerg. 199 ; Burton v. Tunnehill, 6 Blackf. 470; Redman v. Gould, 7 Blackf. 361; Lewis v. Mobley, 4 Dev. & B. 323; 1 Chit. Pl. 151; 2 Greenlf. on Ev., Sec. 636. We are of opinion that the instructions adverted to were substantially defective, erroneous and misleading. The next question for consideration arises upon the ruling of the court in excluding the evidence offered by the defendants to the effect that after the agreement aforesaid of November 30th, and on December 5, 1883, an oral agreement was entered into between the parties by which it was agreed, amongst other things, that the defendant should have the right and privilege of using the flaxseed receipts of seed in question, in closing out their own deals in such seed, and that they had acted upon such agreement and used the same under such license. The court, as it appears from the record, held that because such new agreement was not in writing, to admit the evidence would be to hold that a written agreement could be altered by parol, which under the law was inadmissible. The court, for the same reason excluded a general offer by the defendants to prove that they converted said property to their own use with the knowledge and consent of the plaintiffs. If there be any doubt about the defense of leave and license being admissible under the general issue to an action of trover, there was a stipulation with such plea that any legal defense might be shown which removes that doubt. There is no pretense that, at the time when the alleged new oral agreement was made, there had been any breach of said agreement of November 30th. The question therefore is whether, under such circumstances, the evidence offered was competent. It is proper to observe that the transaction or contract in question was not in any respect within the provisions of the Statute of Frauds. The case therefore falls within the general rules of the common law. It is probable, that no better statement of the rule applicable to the case can be found than that of Lord Denman in Goss v. Nugent, 5 Barn. & Ad. 665, where he says: “After the agreement has been reduced to writing it is competent for the parties in cases falling within the general rules of the common law, at any time before breach of it, by a new contract, not in writing, either altogether to waive, dissolve or annul the former agreement, or in any manner to add to or to subtract from or vary or qualify the terms of it, and thus make a new contract.” Emerson v. Slater, 22 How. 28; Monroe v. Perkins, 9 Pick. 298; Wilgus v. Whitehead, 89 Pa. St. 131. If the plaintiffs orally agreed that the defendants might use said receipts or the flaxseed in settling their own contract or deals in such seed, and the latter acted upon that agreement, it would be a manifest fraud upon them if the plaintiffs could afterward treat such act as a wrongful conversion and as a basis for damages. In Le Fevre v. Le Fevre, 4 Serg. & R. 241, parol evidence was admitted to prove an alteration of the course of an aqueduct established by deed. In passing upon the obj ection that this evidence was in direct contradiction to the deed the court said: “ The evidence was not offered for that purpose, but to show a substitution of another spot. If this had not been carried into effect the evidence would not have been admissible ; but where the situation of the parties is altered by acting upon the new agreement, the evidence is proper; for a party may be admitted to prove by parol evidence that after signing a written agreement the parties made a parol agreement, varying the former, provided their variations have been acted upon, and the original agreement can no longer be enforced without fraud on one party.” We think the court below erred in excluding the evidence offered to prove the new agreement and also the offer to prove that the defendants used said property with the knowledge and consent of the plaintiffs; for such evidence would support the plea of leave and license. In Ratcliff v. Pemberton, 1 Esp. 35, an action of covenant was brought upon a charter party of a ship to recover the demurrage settled by the instrument, which was at per diem, and the declaration stated that the vessel was to be discharged by a certain day mentioned in the charter party, whereas, she had been detained twelve days beyond the time so limited for her clearance, whereby the plaintiff became entitled to per diem demurrage for that time. The case relied on for the defendant was that the plaintiff, who was master and owner of the ship, had consented to enlarge the time within which'the cargo should be discharged, and had waived all claim to demurrage, and the defendant offered to prove that he could have discharged the cargo within the time limited, but that the plaintiff gave him leave to take out the cargo at his leisure, as he, plaintiff, was waiting for freight. Lord Kenyon held that the license and acquiescence of the plaintiff was a good defense and the evidence competent to support it. For the errors pointed out the judgment below should be reversed and the cause remanded. Reversed and remanded.