Sunlin v. Skutt

Grant, J. (after stating the facts). We think the learned circuit judge was in error in holding that the defendant was not liable. The pump was used in the partnership business, and both of the partners received the benefit of it. That defendant acted in good faith is true; but good faith in the purchase or use of personal property is no defense as against the rightful owner. He who purchases or uses the property of another, taken unlawfully, is liable to the owner in an action of replevin [211] without demand, or an action of trover for conversion, or, if the property is returned or retaken, for the value of the use by the innocent trespasser. Haviland v. Parker, 11 Mich. 103; Trudo v. Anderson, 10 Mich. 357 (81 Am. Dec. 795). “Absence of bad faith can never excuse a trespass.” Cubit v. O'Dett, 51 Mich. 347 (16 N. W. 679). A teamster is equally liable with a sheriff when taking property not covered by his writ. Kane v. Hutchisson, 93 Mich. 488 (53 N. W. 624). So, an auctioneer is liable in trover for the unlawful sale of goods under a chattel mortgage, though he act in good faith. Kearney v. Clutton, 101 Mich. 106 (59 N. W. 419, 45 Am. St. Rep. 394). This case does not fall within the rule invoked by the defendant, and stated in 1 Jaggard, Torts, § 99, as follows: “In order that responsibility be attached to a partner with respect to a tort, it is necessary either — (a) that he should have authorized it, or joined in its commission, in the first instance; (b) that he should have made it his own by adoption; or (c) that it should'have been committed by his copartner in the course and as a part of his employment.” The pump was taken by the joint action of both partners as soon as the partnership was formed and the work commenced. It was used by them while they remained in partnership. When property is thus used by a partnership, the partnership is liable to the owner, although one partner may innocently believe that the property is actually owned by the other. After this case was tried, the case of McBride v. Scott, 132 Mich. 176 (93 N. W. 243), was decided. This court notified the attorneys to file briefs upon the question whether the settlement with one of the trespassers had not released the defendant under that decision. Briefs were furnished, showing that the defense was not made in the court below, and claiming that it was not admissible under the general issue. The objection is well taken, otherwise the judgment should be affirmed. The defense is not [212] available under the general issue. Cir. Ct. Rule 7; section 767, 1 Comp. Laws; Hubbard v. Freiberger, ante, 139 (94 N. W. 727). The judgment is reversed, and new trial ordered. The other Justices concurred.