The plaintiff claims a reversal of the judgments below: 1st. On the ground that upon the pleadings in error and verdict upon the issue in fact found for the plaintiff, the supreme court was* precluded from looking into the record, as there was no joinder in error, and was bound to give a judgment of reversal as a matter of course, whether there was error in law in the judgment of the common pleas or not, as that by the pleadings error in law was' confessed.
A non-enumerated motion was made in this cause on the part of the plaintiff at a special term of the supreme court, (2 Denio, 201,) for a rule reversing the judgment of the common pleas, founded upon the papers which would make the usual error book and the postea and circuit minutes, when it was held that the court must look into the record just as it would have done had there been a joinder in error, instead of a plea in bar, and that a judgment would be given upon the same principles which would govern, if there had been a joinder in error, instead of a plea in bar; subsequently error books were made and the cause brought to argument upon the calendar at a general term.
It was insisted on the argument by counsel for the plaintiff, that as the plea in nullo est erratum, and the plea of the statute
That if the court, after such issue in fact had been found for - the plaintiff, would still take notice of the record, so far as to see whether there was error in it or not, and render a judgment accordingly, as upon a plea of in nullo esi erratum, it would involve the inconsistency of giving the defendants the benefit of both pleas indirectly, which they could not have directly.
I think the result of the authorities are, that the court ought not to give judgment of reversal, if there be no error in law, notwithstanding in nullo est erratum is not put in; and though it be true, that the defendants in error will then have the same advantage indiréctly, as if they had pleaded that there was no error, which could not be permitted with the plea of the statute of limitations, the general rule is, that the court, ex-officio, must give the proper judgment, according to the right appearing upon the whole record. (Dive v. Manningham, Plowden, 66; Carleton v. Martagh, 6 Mod. 113, 206; Meredith v. Danes, 1 Salk. 270; Rex v. Wilkes, 3 Burr 2551; Castledive v. Mundy, 4 Barn. & Ad. 90; Bret v. Papillon, 4 East. 502; Fraunee’s case, 8 Coke, 93 A; Cunningham v. Houston, 1 Strange, 127; Davenant v. Rafter, 2 Ld. Raym. 1046.)
2nd. That the judgment of the common pleas is erroneous, because the evidence given on the trial showed, or tended to show, a wrongful taking of the property replevied by the defendant.
At common law, replevin only lay to recover personal property, which had been tortiously taken, either originally or by construction of law, by some act which made the party a trespasser ah initio. A wrongful detainer, after a lawful taking, "
By 2 R. S. 553, § 15, the action of detinue was abolished, and the remedy by replevin was extended, so as to include cases of the wrongful detention as well as the "wrongful taking of chattels. (2 R. S. 522, § 1.) But the distinction between talcing and detaining is required to be maintained in the writ and declaration, and the plea differs both in its language and consequences in the two cases. (§§ 6, 36, 39, 40; Nichols v. Nichols, 10 Wend. 630.) In this case, the action being' for a wrongful taking, it follows, if there was no evidence given tending to show the defendants chargeable with such act, the common pleas was right in non-suiting the plaintiff, although the evidence showed them chargeable with a wrongful detention.
Conceding that the contract for the purchase of the horn-tips was consummated, and that under it the title to the property passed to the plaintiff, as I think it must be, at least, for the purpose of determining the question made on the trial, the evidence" showed that the plaintiff declined then to take away the goods, and left them in the possession of the defendants in their store to keep, until he could count and take them away during the following week, thus constituting the defendants his naked bailees for the safe keeping of the goods to be delivered to him at the place of .deposit and time appointed, if required. In this situation the plaintiff called at the .time and place appointed, and while in the act of counting, preparatory to securing and taking the property away, under the allegation, that in making the payment of the price of the goods, by some mistake it fell short by the sum of $ 100, Perkins refused to allow the plaintiffs to complete the count or take the goods away.
But it was insisted by the plaintiff’s counsel that a wrongful detention is evidence of, and constitutes a taking ; and the case of Evans v. Elliott, 5 Adol. & Ellis, 142, was referred to as sustaining the proposition. That was an action of replevin for taking and detaining certain cattle, Sec., against J. Elliott, S. Elliott and T. Patrick. There was an avowry by the two Elliotts, and cognizance by Patrick, for rent due to the two Elliotts. Plea by the plaintiff that, after the takingxof the cattle, Sec., and before the impounding of the same, to wit, &c., the plaintiff tendered and offered to pay to Patrick, then being the bailiff of J. & S. Elliott, and by them duly authorized to receive the said rent, and make said distress, the said sum of, &c., so due for rent, as in the avowry, &c., mentioned, together with a certain sum,of money, to wit, Sec., for the costs and expenses of the taking the distress, the last said sum being reasonable and sufficient for the costs, &c., which several sums Patrick refused to accept, and afterward unjustly detained the said cattle, &c. There was a demurrer, assigning for causes that the plea did not sufficiently traverse, or confess, arid avoid the matter in the avowry and cognizance, in this, that it is pleaded to the whole avowry and cognizance, and contains matter in answer only to part, the avowry and cognizance justifying the taking and detaining, and the plea not showing that the taking was not justified. There was a joinder. Lord Denman, C. J., said, “ This is a very
“ The cases show that the damages recovered would be only for such unlawful taking as would be shown to the jury.”
Littledale, J., said, “ I am entirely of the same opinion. The detention after the tender satisfies the declaration.”
Paterson, J., said, “ The authorities cited by Mr. Williams show that replevin lies for detaining, and that is, as for a new taking.”
The judgment of the court in that case proceeded upon the ground that it was competent for the plaintiff to plead to the avowry and cognizance, that after the tender the defendants again took and detained the distress, See., and that as the plea stood it was not necessarily confined to the taking before the tender; and the remark that “ every unlawful detention was ' a taking,” was made in reference to an unlawful detention of a distress for rent, made under authority given the party by law, which unlawful act rendered the party a trespasser ah initio; in that sense the remark may be correct. But it has no application in this case. The counsel for the plaintiff on the argument insisted that any unlawful interference with the property of another, or exercise of dominion over it, by wdiich the, owner was damnified, was sufficient to maintain replevin for taking, or trespass de bonis, and Allen v. Crary, 10 Wend. 349, was referred to as an authority to sustain the principle. The principle, without any doubt, is true, and the authority is in point; but, as I think, neither the principle nor authority have any application here, as I understand the facts in the case. There the defendant who was sued in replevin in the cepit had pointed out the property in question, and directed the sheriff to levy on it (it being the property of Allen the plaintiff) on an execution in his (the defendant’s) favor against one Rowan.
When the non-suit was ordered, the defendants being entitled to a return of the property, by their counsel stated that he would take an assessment of damages under the statute; but before any further step was taken in the cause, he stated to the court that he would waive the assessment of damages, and take a judgment for a return of the property. The plaintiff’s counsel objected on the ground that the defendants had elected an assessment of damages, that the jury had remained impanneled, and that the defendants had thereby waived and precluded themselves from such judgment. The objection was overruled and an exception taken, upon which the jury assessed the value of the property.
It was a matter within the discretion of the court to allow the defendants to waive their election to have an assessment of damages and take judgment for a return, especially as nothing had been done under that election.
I think there is no error in the judgments of the courts below,' and that the judgment of the supreme court should be affirmed.
As the issue of fact which was joined in the supreme court was found for the plaintiff, he insists that the judgment of the common pleas should have been reversed, whether there was any error in the record and proceedings or not. Another argument of the question has not changed, but has confirmed the opinion which I expressed when the case was before the supreme court on motion. (2 Denio, 201.) All the cases on which the plaintiff now relies were examined then, though some of them are not mentioned in the report. The verdict only settled that the plaintiff was not barred of his writ
The common pleas was right in holding, that at the most there was nothing but a wrongful detention of the goods, and that replevin in the cepit would not lie. It is clear upon the evidence that the property was never out of the possession of the vendors, and, consequently, that they could not have taken it from the plaintiff. It has been settled quite too long to allow it to be questioned now, that, at the common law, replevin wilT only lie where trespass might have been maintained ; and although our statute authorizes the action for an unlawful detention, as well as for an unlawful taking, the distinction between the two cases is to be kept up in the writ and pleadings; (2 R. S. 522, § 1, 6, 36, 39, 40;) and in this, as well as in other cases, the plaintiff must prove his case as it is laid, or he cannot recover. There have been many instances where the plaintiif has failed in the action of replevin, because he had declared in the cepit instead of the detinet.
But there is a still more serious difficulty in the plaintiff’s way. The title to the property never passed out of the vendors. Although the witnesses and the bill of parcels speak of the sale of nine casks of horn-tips, it cannot be denied, upon the evidence, that it was a sale of some specified quantity of tips, which quantity was to be ascertained by counting. The vendors requested the plaintiff to count and take them away as soon as he could, as they had no room for them; and the plaintiff said he could not take them away until he had counted them. The counting was" commenced, and it progressed until it had been ascertained that there were 1800 less tips of one kind than the number agreed to be sold. I need not refer to cases to prove that so long as any thing remains to be done between the parties, as weighing, measuring, counting, or the like, the title to the goods has not passed, but is still in the vendor. It is impossible to maintain that the plaintiff was bound to accept what tips might be found in the nine casks, although the quantity was deficient; and he never proposed or offered to accept any less than the quantity for which he had agreed. If the vendors were in fault, the plaintiff has a remedy; but he cannot maintain replevin.
I see nothing in the other questions made by the plaintiff
This was an action of replevin in the cepit, and on the trial in the common pleas the judge non-suited the plaintiff on the ground that there was no evidence of a wrongful taking; but at most, only of a wrongful detention of the goods. It is admitted, that if the plaintiff gave any evidence of a tortious taking, however slight, the case should have been sub-' mitted to the jury.
The action being in the cepit, there can be no doubt that if the defendants lawfully acquired the possession of the goods, the plaintiff must fail; although it is not clear that had it been in the detinet, it might not have been sustained by showing a tortious taking only. The important question, therefore, in the case, is, whether there was any evidence of a wrongful taking by the defendants. The solution of this question depends upon several inquiries. 1st. Did the evidence offered show the general property of the goods to be in the plaintiff? 2nd. Had there been an actual or constructive delivery of them to him, and was he in actual or constructive possession ? 3rd. Was there, on the part of the defendants, such an interference with or unlawful exercise of dominion over the property as to constitute them trespassers? It is an established principle that replevin in the cepit will only lie where trespass might have been brought; but in my view, if the two first inquiries are satisfactorily solved for the plaintiff, there will be little difficulty in determining the latter in his favor. In cases of tortious taking, trover, trespass de bonis asportatis and replevin, are concurrent remedies; and the same interference with a man’s’ goods, which would amount to a wrongful taking in trespass, would have the like effect in replevin. My brother Jewett supposes that the defendants were naked bailees of the goods, and that, consequently, the form of the action was misapprehended ; but I can discover nothing in the facts of the case to lead to such a conclusion.
1. As to the right of property in the goods. It is a familiar principle of the case of contract, that although a contract for
2. Was there a delivery to, and possession of the property in the plaintiff! Where a sale is Iona fide, and for a valuable consideration, slight evidence of delivery is sufficient. (Shumway v. Rutter, 8 Pick. 443.) Goods are delivered when they are placed in the vendee’s power, so that he may immediately remove them, and cannot be rightfully prevented from so doing., (Smith’s Mercantile Law, 499, and cases cited.) Where a sale is for cash, and payment is made, the vendor is bound to deliver ; and delivery may be inferred from slight circumstances. It is a rule, that where by the contract itself the vendor appropriates to the vendee specific chattels, and the latter thereby agrees to take them, and to pay the stipulated price, the very appropriation of the chattels is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattels, and to pay the specific price, is equivalent to his accepting possession. (Chitty on Contracts, 375.) There is no case contradicting the principle, that when a vendor of goods has ascertained and appropriated them, and the vendee has assented to such
There being a cash sale, payment made, and a constructive, if not an actual delivery of the goods, the absolute right to, and possession of them vested in the plaintiff, the effect of which absolute investment was to enable him to hold them against all
The judge, in non-suiting the plaintiff, admitted that he had given evidence of a wrongful detention. If by the terms of the contract, the property did not absolutely vest in the plaintiff, but something remained to be done by the parties as a precedent condition to the delivery and sale, the legal possession continued in the defendants; and such possession being legally in them, there could be no wrongful detention; nor could they, as one of my brethren supposes, be constituted bailees for the plaintiff. A wrongful detention, as against the plaintiff, supposes that he is entitled to the possession of the goods, and that they are unjustly detained, though the original possession of the defendants was lawful. If, as the counsel for the defendants insist, the property had not absolutely vested in the plaintiff, but the contract was still executory, there could be no wrongful' detention, nor could replevin in the detinet be maintained. The admission, therefore, that there was evidence of a wrongful detention in effect admitted the title to the property and the right of possession to be in the plaintiff. So also, if the property in the goods had not absolutely, vested in him by sale and delivery, the defendants could in no sense be considered as his bailees.
3. Was there, on the part of the defendants, such an interference with, or unlawful exercise of dominion over the property as to constitute them trespassers 1 For if their acts were such, as in judgment of law to make them trespassers, replevin in the cepit will lie against them. The defendants insist, that if the property in the goods passed to the plaintiff, trover was the proper remedy after demand and refusal. Why, if I am right in my conclusions that the title was in the plaintiff, and that there was a delivery and an actual or constructive possession, any exercise or claim of dominion, though by mere words, the defendants having the goods within their power, amounts to such a taking as to warrant an action of trespass. (23 Wend. R. 466.) Our own courts have repeatedly decided that a mere claim of dominion, an intention being indicated to interfere
I am of the opinion that the judge erred in non-suiting the plaintiff upon the assumption that there was no evidence of a wrongful taking. The property being in the plaintiff, the question, whether there had been a tortious taking, turned upon matters of fact for the jury to find from the evidence. That evidence should have been submitted to them.
Decision.—Judgment affirmed. •
For affirmance, Jewett, Ch. J., Bronson, Jones, Rugóles and Gardiner. For reversal, Wright, Johnson and Gray.
Meld, (on the merits,) that the defendants, at the time of refusal to let the plaintiff have the goods, had the possession thereof as bailees, by the authority of the plaintiff; and could not by any wrongful subsequent act, as by converting the same to their own use, have made themselves trespassers ab initio; and replevin for an unlawful taking could not be sustained.
It was a matter within the discretion of the court to allow the defendants to waive their election to have an assessment of damages, and take judgment for a return.
Bronson, J., (as to the record,) was, after another argument, confirmed in the opinion which he expressed when the case was before the supreme court, on motion (2 Denio, 201) that the verdict only settled that the plaintiff was not barred of his writ of error; and left the question still open, whether in truth there was any error in the judgment of the common pleas.
Did not recollect of any case where the judgment is either affirmed or reversed, without looking into the record, except where judgment passed by default in the appellate court; and where error in fact is assigned by and is found or adjudged in favor of the plaintiff.
Meld, (on the merits,) that it was clear upon the evidence that the property was never out of the possession of the vendors, and consequently they could not have taken it from the plaintiff'. At the common law replevin will only lie where trespass might have been maintained; and although our statute authorizes the action of replevin for an unlawful detention, as well as for an unlawful taking, the distinction between the two cases is to be kept up in the writ and pleadings.
And further held, that in this case the title of the property never passed out of the vendors. Upon the evidence it was, undoubtedly, a sale of some specified quantity of tips, which quantity was to be ascertained by counting, and the counting not having been completed, the title remained in the vendors.
Wright, J., (dissenting, discussed only the merits,) held, that the evidence showed that the plaintiff, through his agent, and in the ordinary course of trade, purchased from the defendants, for cash, nine casks of horn-lips in bulk.; the amount was paid, and the defendants gave a bill of sale of the property in bulk; and also receipts of payment of the price. After the price had been fully paid and the receipts given, the plaintiff was directed by the defendants to take the tips away. There was no evidence of an agreement to count the tips, or that the number in any way entered into the bargain, or that the value or price depended at all upon the number. That the written evidence was conclusive that the tips were purchased and paid for at a stipulated price in bulk; and that at the payment and receipt of the money, as between vendor and vendee, the contract was fully executed. Nothing remaining to be done to consummate the
Also held, that the evidence showed, at least, a constructive, if not an actual delivery of the property to the plaintiff; and that the plaintiff was in the actual possession of it, subsequent to the sale and prior to and cotemporaneous with the interference of the defendants. . =>
It made no difference that the property was on the defendants’ premises; the plaintiff’s agent was there holding it by the express assent and license of the defendants. And in the absence of any proof of assent, the plaintiff would have had a right to enter and possess himself of the property and take it away.
The admission that there was evidence of a wrongful detention in effect, admitted the title to the property, and the right of possession to be in the plaintiff. If the title to the property was not absolutely vested in the plaintiff, and the contract remained executory, there could be no wrongful detention by the defendants.
If, therefore, the title of the property was in the plaintiff, and there was a delivery, and an actual or constructive possession, any exercise or claim of dominion by the defendants, though by mere words, the defendants having the goods within their power, amounts to such a taking as to warrant an action of trespass, and consequently replevin in the cepit.
Also held, that the evidence showed such an exercise of dominion over and interference with the property by the defendants, not as bailees for the plaintiff, nor- for the reason that the sale had not been fully consummated, as constituted a wrongful taking. At least it was a question for the jury; and the plaintiff should not have been non-suited.