Johnson v. Willey

Nesmith, J. The sale of the heifer in suit, being shown to have been made by Adams to the plaintiff upon a good consideration paid by the plaintiff, therefore binds the parties to that contract. This sale Avas fortified by a delii-ery to thé plaintiff of the animal in question, and third persons Avill be bound, unless the purchaser may have conducted in such a manner, by permitting her afterwards to return into the possession of the original OAvner, and to be so managed by him as to forfeit his claim to her. So far as the sale is concerned, it is not pretended but that the plaintiff had the right to such security for his debt against [77] Adams, and that Adams was at full liberty to sell to the plaintiff at a fair price any property he had. We hear no complaint of the price paid for this animal, and its value appears to have been endorsed on the note held by the plaintiff against Adams. After the animal had remained in the plaintiff’s possession, or upon his own land, for some days, was it-wrong or unnatural for the plaintiff, as the landlord, to contract with his tenant to pasture the heifer for him during the season of pasturing ? We see no ground to presume that such a contract as is here shown can be regarded as uncommon, or as made with a fraudulent intent to injure others. There is no evidence here, that Adams had any authority, either express or implied, to sell or dispose of any of plaintiff’s property, or that he had any knowledge of such conduct on the part of Adams, until after the sale was effected. The relation of landlord and tenant existing here was such as should have put the defendant and all third persons, who might desire to trade with Adams, upon inquiry as to the ownership of the property found upon the landlord’s lands. For it by no means follows, as a general and legitimate conclusion, that all the stock found in the possession of tenants can be rightfully disposed of by them, and the price paid over to them without reference to the landlord’s rights. We see no sufficient evidence here, that the defendant has exercised ordinary care and diligence in making previous inquiry before purchasing the property in dispute. Chancellor Kent prescribes the true line of duty for the defendant in such cases, 2 Com. 485. He there remarks, that the common law affords to every one reasonable protection against fraud in dealing, but it does not go to the length of giving indemnity against the consequences of indolence, or a careless indifference to the ordinary and accessible means of information. The law requires the purchaser to apply his attention to those particulars which may be supposed within the reach of his observation and judgment. If the purchaser be wanting in attention, where attention would have been sufficient to protect him from surprise or imposition, the maxim caveat emptor ought to apply. Even against this maxim, he may provide by requiring the owner to warrant the title to that which the law would not imply to be warranted, and if the vendor be wanting in good faith, fieles serveinda is a rule equally at law and in equity. 1 Fonblanque Equity, 371. The observance of the aforesaid judicious rules of conduct, so clearly enforced, would probably have saved the defendant from the consequences of the fraudulent contract of Adams in selling to him the property claimed by the plaintiff. But, if actual fraud existed on the part of the plaintiff with reference to the property claimed here, the defendant might very properly have availed himself of the judgment of the jury, whose legitimate duty in the premises would have been, under suitable instructions of the court, to have settled this point. But the defendant having waived this privilege, we feel at liberty to apply such law to the contract and conduct of the parties as we deem pertinent to the same. And we confess that, under due consideration of the circumstances of the case, we see no reason why we should impute fraud to the plaintiff, [78] in his arrangements with Adams, or why the implication of fraud in law should he raised against him in reference to the rights of third persons or purchasers under Adams. It appears to us, that the plaintiff properly stands as bailor, and Adams as the bailee, he having received the heifer into his possession, to keep for hire, or where the law will presume a suitable price to be paid as a reward for the keeping. As bailee, Adams would be responsible for want of good faith, reasonable care, and ordinary diligence. 2 Kent Com. 591; Story on Bailments, secs. 276, 278 & 279. The bailor is regarded as the general owner, and the bailee has only a limited or qualified right of possession, and mere possession of personal chattels, without some other evidence of property or of authority from the real owner to sell, will not enable the possessor to transfer to a purchaser a better title than he himself has. Covill v. Hill, 4 Denio 323. The owner of property cannot be divested of it save by his own consent or the operation of law. Williams v. Merle, 11 Wend. 81. If the bailee sell the property without authority, a purchaser, although buying in good faith, and without notice, acquires po title, and the owner may recover his property or its value from any one in possession. 1 Parsons on Contracts, 578; Sanborn v. Colman, 6 N. H. 14; Lovejoy v. Jones, 30 N. H. 169; Sargent v. Gile, 8 N. H. 325; Galvin v. Bacon, 2 Fairfield, 30; Nash v. Mosher, 19 Wend. 431; Neff v. Thompson, 8 Barb. 213. Wé cannot, as before suggested, declare that the return of the heifer info the possession of the former owner for the purpose of being pastured during the season of pasturage, does, in law, render th e original sale to the plaintiff fraudulent or void. If the jury had found that such arrangement was made with any fraudulent or colorable intent, or that the sale was attended with a secret trust, then the inference would be otherwise and the result different. But, in the absence of actual fraud, our judgment is, that the plaintiff, upon the aforesaid facts and grounds of reasoning, is entitled to judgment for nominal damages and his costs.