Sanborn v. Buswell

Ladd, J. We are unable to see any distinction between this case and Phelps v. Gilchrist, 28 N. H. 266, cited and relied upon by the defendant’s counsel, where it was held that proof that a written demand was left at the receiptor’s dwelling-house, or delivered to him in person, without more, will not be evidence of a breach of the re-ceiptor’s contract or duty, or of a conversion of the property. It is true, in that case it does not appear that the receiptor was out of the State at the time the written demand for the property was left at his dwelling-house ; but if, as was there held, the demand upon the receiptor must be personal, and such that he may at once discharge himself by yielding to the claim and giving up the property, it is certainly clear that it makes* no difference whether he be within the State at the time or not; a demand in writing left at his place of abode must in either case bo unavailing, and a personal demand elsewhere would bo sufficient, although if he declares his willingness to deliver the property he must have reasonable time and opportunity to do so before a suit can be maintained against him for its conversion. Dunlap v. Hunting, 2 Den. 643. The claim of this plaintiff, therefore, is, that the doctrine established in Phelps v. Gilchrist be overruled; and it is urged that this should be done because the application of that doctrine leads to practical absurdity and wrong. It is said that, while it is held to be the duty of an officer to accept a responsible receiptor for the property attached if one is offered, by the application of this doctrine auy receiptor, no matter how responsible, by simply absenting himself or avoiding the officer until after thirty days from the rendition of judgment, may avoid his liability, and so leave the officer liable for the property attached, although he has exercised all reasonable care and prudence in the discharge of his duty. This is stating the matter too broadly; but it can [576] not be denied that in cases where the property is allowed to go back into the hands of tlie debtor, as is usual, some such result is liable to follow tlie application of this rule; for, whatever might be the elfect of an intentional avoidance to prevent a demand, the receiptor may be called away from home by his own legitimate business, and a personal demand may be thus rendered impossible without any fraudulent or improper purpose on his part. The force of this argument cannot be denied; and if tlie form of the receipt were prescribed by law, it would probably be irresistible. But it is to be borne in mind that the receipt is nothing more than the written evidence of the contract of bailment entered into by the officer and receiptor; its form is a matter of voluntary agreement between them, and the rights and liabilities of the parties to it must be determined by the fair construction of the writing itself. It would be easy to provide, in the outset, against the contingency of the receiptor’s absence when the property may be wanted to apply'on an execution, or to be returned to the defendant in case he prevails, by inserting a suitable provision in the receipt for that purpose. But if the written contract fails to make provision for such a contingency, the defect cannot be supplied by the court. The liability of the receiptor cannot be enlarged by implication, whatever result may follow the legal interpretation of the contract he has made. In this case, it is said the receipt was in the common form, and we assumb that tlie undertaking was to return the goods to the officer on demand. The question, therefore, is, as before suggested, exactly the question decided in Phelps v. Gilchrist, namely, Wliat is meant by “ on demand ? ” Does it mean a personal demand, such that the receiptor may thereupon discharge himself by delivering the property ? or, do the words admit of a construction which will allow a written demand left at the dwelling-house to be sufficient ? In Phelps v. Gilchrist, as we have seen, it was held that the demand must be personal; and, upon very careful consideration, we tlimk. that, whatever reasons may be urged against that decision, they are not sufficiently cogent to require that we should overrule the case, after it has stood unquestioned for eighteen years, and has been received and acted on .as the law of the State for that length of time. Nor are we prepared to say that we should reach a different result were the question new. The reasons given by the learned judge who delivered the opinion of the court in that case are extremely clear and forcible, and it may be doubted whether they admit of an answer. We are aware that it has been held the other way in Massachusetts, in a case reported many years before Phelps v. Gilchrist (Mason v. Briggs, 16 Mass. 453), and that it is there intimated that the receipt- or’s absence from the State would make a difference. But the opinion is very brief, and no reasons are given for either of the views expressed by the court. We are quite agreed that absence from the State can make no difference; and as to the other point, we are inclined to follow our own case, which was evidently considered with much more care, and will, quite likely, be found to rest upon a sounder view of the law. Case discharged.