Tome v. Dubois

Mr. Justice CLIFFORD delivered the opinion of the court. Careful attention to the facts of the case, as given in the statement prepared, as a .part of the opinion of the court, will very much facilitate the investigation, as it discloses very fully the substance of the entire transaction, the order of the events and the pretensions of the respective parties. Original ownership of the logs is not a question in the case, and the present parties conceded that the booms containing the logs were broken by the freshet, and that the logs, in spite of any efforts of the owners, were carried away by the current, and floated down the river. Telegrams were sent by the owners making known their loss, and requesting the persons to whom they were directed to take measures in their discretion to save the logs, and it is with *553 out dispute that the defendants promptly engaged in the business, and saved the logs in controversy. Owning sawmills, they immediately commenced to saw the logs, as they secured them, into planks. Other persons also lost logs by the same freshet, and the several owners appointed a committee of three persons to go down the river and, if possible, protect their interests, and to sell the logs if in their discretion it was thought best. Pursuant to that authority they went to the mills of the defendants, and offered to sell them the logs, sawed and unsawed, but the parties not being able to agree, the committee notified the defendants that they must stop sawing the logs into lumber. Unable to come to any satisfactory arrangement, the committee left and sold the whole lumber, logs and planks, to the plaintiffs, who paid the consideration. Having become the owners, the plaintiffs went to the mills of the defendants, and failing to sell the lumber to them, or to come to any agreement with them, they demanded the lumber, logs and planks, and the defendants refusing to deliver the same, they instituted this suit in the Circuit Court. Purchase by the plaintiff’s was made on the twenty-sixth day of October, 1861, as appears by the evidence. Refusal of the defendants to deliver the lumber as demanded, was placed upon the ground that they, the defendants, were responsible to the former owners, and they denied that the ownership was in the plaintiffs, as the logs'aud planks had not been scaled and delivered to them since the purchase.. Theory of the first prayer for instruction is, that the defendants are not liable in this action, because they took the logs into their possession, and sawed the same into planks while the. logs were the property of the original owners. Stated in other words, the proposition is, that the logs, at the time of the conversion, were the property of the vendors of the plaintiffs, and the defendants contend that, having tortious^ converted the lumber to their own use, before the sale, they are not liable to the plaintiffs as the purchasers. Delivery was not essential, as it is well settled that when the terms of the sale are agreed on, and the bargain is *554 struck, and everything the seller has to do with the property is complete, the contract of sale becomes absolute between the parties without delivery, and the property and risk vest in the purchaser. * Owners of personal property are not obliged to treat every act of a third person who invades their right of property or possession as constituting a tortious conversion of the property, but they may, if they see fit, waive the tort, and in that state of the case, they may sell the property and convey a good title, and their vendee may, upon demand and refusal, maintain trover. † Such a defence of a wrongdoer is not entitled to any special favor, and we concur in the remarks of Judge Story, that there is no principle of law which establishes that a sale of personal property is void because the property was not .in the possession of the rightful owner at the time the sale was made. Under such circumstances, the sale is not a sale of a right of action, but a sale of the thing itself, and good to pass the title against every person not holding the same in good faith for a valuable consideration without notice, and a fortiori against a wrongdo'er. ‡ Conversion relied on by the plaintiffs is not because the defendants-intermeddled with the logs without authority, or that they refused to deliver the lumber when it was demanded by the committee. They could not rely on those acts with any hope of success, as the plaintiffs, at those dates, had no title to the lumber, which at that time was vested in their vendors. But they subsequently became the purchasers, and the proofs show that they twice demanded the lumber after the defendants knew that the plaintiffs had become the purchasers. *555 Third prayer for instructions corresponds with the proofs, which show that the defendants persistently denied the title of the plaintiffs, and claimed the right to hold the lumber, sawed and unsawed, for the benefit of the original owners, which is a theory without merit, and which requires no further explanation. Claiming no title to the property, they refused to deliver it, because, as they insist, they had taken away from the original owner the power to sell, by tortiously converting it to their own use. Even at the trial they admitted that the property did not belong to them, but insisted that the purchasers acquired no title for the reasons already suggested. Claim is also made in argument that the defendants had sold a part of the lumber, but it is too late to raise any such question in this court, -as none such was raised at the trial, or reserved in the bill of exceptions. Proper exceptions were also taken to the refusal of the. court to give the second and fourth prayers presented by the defendants, but the exceptions cannot be sustained, as the substance of both is embraced in the instructions given by the court. Purport of those prayers were that the defendants were entitled to a reasonable sum for the cost of saving and sawing the logs. Instructions of the court to the jury were, that they should deduct from the value of the lumber the cost of saving the lumber, and also the cost of sawing, which is all the defendants could demand in any view of the facts. Valid objection cannot be taken to the qualification annexed to that instruction, as the testimony was without conflict that the defendants had saved the logs and manufactured a part of them into plank, and there is no proof that the owners or the committee made any complaint, that the work bad been done without authority. Amount of the verdict affords satisfactory evidence that the finding was correct. The residue of the instruction is unexceptionable and there is no error in the record. Judgment affirmed with costs. Footnotes [*] Leonard et al. v. Davis et al., 1 Black, 483; 2 Kent’s Com. (11th ed.) 492. [†] Hall v. Robinson, 2 Comstock, 293; Cartland v. Morrison, 32 Illinois, 190; 2 Greenleaf’s Evidence, 108 ; Hambly v. Trott, Cowper, 372; Cravath v. Plympton, 13 Massachusetts, 454; Webber v. Davis, 44 Maine, 147. [‡] Brig Sarah Ann, 2 Sumner, 211; Carpenter v. Hale, 8 Gray, 157 ; Zabriskie v. Smith, 3 Kernan, 322; Morgan v. Bradley, 3 Hawks, 559.