Cooper v. Newman

Bartlett, J. The facts stated in Cooper v. Newman show a valid attachment of the oxen by the plaintiff, Huntingdon v. Blaisdell, 2 N. H. 317; and it is not material here whether the plaintiff retaineda ctual possession of them throughBliss, for if he allowed the oxen to remain in the possession of Howard, it was upon the understanding of both that the attachment was still to subsist, and therefore the attachment would not be defeated by the fact that possession was not retained by the plaintiff, as against Howard or any one having notice that the attachment had been mude and was still subsisting. Houston v. Blake, 43 N. H. 116; Treadwell v. Brown, 43 N. H. 292. As the defendant at the time, of the purchase was put upon enquiry whether the oxen were then under attachment, he is to be charged with notice of all such facts as he would have .learned by reasonable enquiry, Nute v. Nute, 41 N. H. 69; Patten v. Moore, 32 N. H. 384; Warren v. Swett, 31 N. H. 342; and by such enquiry he would have learned not merely that the oxen had been attached, but that it was the understanding between the plaintiff and Howard that the oxen remained, as they did, subject to the attachment, that Bliss was acting as keeper of them for the plaintiff, and that the attachment was still subsisting. Young v. Walker, 12 N. H. 508; Chadbourne v. Sumner, 16 N. H. 132; Carpenter v. Cummings, 40 N. H. 171. The defendant purchased the oxen of Howard, who, as against this attachment, had no right to sell them, and took possession of and held them as Ms own, and as the attachment was valid as against the defendant, this was a conversion, Hyde v. Noble, 13 N. H. 499, Clark v. Rideout, 39 N. H. 238, Burnside v. Twitchell, 43 N. H. 392, for which the plaintiff may maintain this action and recover in the present case the value of the oxen with interest. Whitney v. Farwell, 10 N. H. 13; R. S. ch. 194, sec. 5. There must in this case be judgment for the plaintiff for $80 and interest from Dec. 23, 1861. Upon the facts stated in Howard v. Cooper, the defendant had the right to attach one cow only, Greenleaf v. Sanborn, 44 N. H. 17, R. S. ch. 184, sec. 2 ; and his attachment of the other cow being wrongful, he is liable in this action: Walcott v. Keith, 22 N. H. 206; Summersett v. Jarvis, 3 B. & B. 2; Woodbury v. Long,8 Pick. 543; Blanchard v. Coolidge, 22 Pick. 156; Webber v. Davis, 44 Me. 152; 2 Gr. Ev. sec. 642; 2 Hill on Torts, 244; but as the property taken was soon after lawfully held and sold under the mortgage made by the plaintiff, which had regularly come into the hands of the defendant as 343 agent for Towne, Whittemore v. Gibbs, 24 N. H. 488, R. S. ch. 132, secs. 13, 16, Id. ch. 184, sec. 15, (see Hinds v. Ballou, 44 N. H. 619; 2 Hill, note 294,) and the proceeds of the sale went properly towards the payment of the mortgage debt of the plaintiff, R. S. ch. 132, sec. 16, the sum for which it sold should go in mitigation of damages. Pierce v. Benjamin, 14 Pick. 361; Felton v. Fuller, 35 N. H. 229; 2 Gr. Ev. sec. 276. As the sum, for which both cows were sold, was considerably less than the mortgage debt, we need not examine the last question suggested by the plaintiffs counsel. There is no evidence of the value of the cows other than this sale, or of any actual damage to the plaintiff, and the interest on the value of either cow from the date of the conversion to the time, when Towne’s mortgage title accrued, would be no more than nominal damages. There must be judgment for the plaintiff for nominal damages.