Fisk v. Ewen

Nesmith, J. Taylor had possession of the oxen under a conditional contract, that he was to own them when he had paid for them, and there is no pretence that he had paid plaintiffs for the cattle, when he bargained them away to James Ewen, the defendant’s brother. It is an elementary principle of the law, that mere possession of personal property without some other evidence of right, or of authority from the owner to sell, will not enable the possessor to transfer a better title than he has in himself. Covill v. Hill, 4 Denio 323. The owner of property is not bound by a sale made in a different way from that which has been authorized and for his own benefit, even though the property has been resold by the vendee. Hilliard on Sales, 32; Parsons v. Webb, 8 Greenleaf 38. The law protects the owner, claiming to enforce the condition, on the breach of the contract, under a variety of circumstances. A. purchased of B. a mare, and it was agreed in the note, which A. gave for the purchase money, that B. should keep possession of the mare until the note was paid. A. sold the mare before the note was paid. Held, that no title passed to the vendee, as none had vested in A. and the vendee was liable in trover to B. Buckmaster v. Smith, 22 Vt. 203; West v. Bolton, 4 Vt. 558; Porter v. Pettengill, 12 N. H. 298; Haven v. Emery, 33 N. H. 66; Kimball v. Jackman, 42 N. H. 245 ; Marston v. Baldwin, 17 Mass. 606. According to the evidence as shown by the case, the defendant assisted his brother James in making the bargain with Taylor for the oxen, in paying for them, in driving them off, and in applying them to his own use, and, under the circumstances, we think no demand was necessary, or essential to the plaintiffs’ right of' recovery upon the statement of facts found in the case. 2 Greenleafs Evidence, sec. 642; Lovejoy v. Jones, 30 N. H. 168; Lathrop v. Blake, 3 N. H. 57. The questions upon the instructions as to the demand became immaterial, and there must be Judgment on the verdict.