Bailey v. Colby

34 N.H. 29

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1856
• Status: Published

Opinion

Bell, J.

It was held in the case of Sargent v. Gile, 8 N. H. 325, that if a bailee for hire for a limited period, sell the goods before the expiration of the term, the bailment is thereby ended, and the owner may maintain trover, if the vendee refuses to deliver them up on demand ; and it will not alter the case if the bailee had by his contract a right to purchase the goods within the term by paying a certain price. The case was carefully considered, and the numerous authorities cited fully sustain the conclusions of the court. Unless, then, it shall appear that there are exceptions to this general rule, to which the attention of the court was not called in that case, the rule then laid down must govern and conclude the case before us.

At common law a feoffment or other conveyance, which operated to transfer the fee of the estate, if made by a tenant, created a forfeiture of the entire interest of the tenant, and the lessor could at once bring his action, and recover the whole estate. 4 Kent Com. 82,106. But a conveyance by grant or other form of conveyance, the legal operation of which was merely to transfer to the purchaser the interest of the tenant, did not operate as a forfeiture, because it did not tend to divest or in any way injuriously affect the estate of the landlord. 4 Kent Com. 83 ; (Touchstone 105.) To the rule last stated, however, there is an exception in the case of a tenant at will, for he has no assignable interest, and any conveyance of the property by such a tenant has the effect to put an end to the tenant’s estate, while his grantee acquires no right whatever. 4 Kent Com. 114; 2 Black. Com. 146.

These distinctions in the case of real estate seem to us founded in the nature of things, and they are capable of application, and suitable to be applied, in the case of personal property, where the circumstances are substantially similar, and no strong reasons of public policy or public convenience forbid their application.

In the great mass of bailments the reason which governs in the case of estates at will would be found to apply. The nature of the bailment, the objects to be effected by it, forbid that the bailee should have, or should be regarded as having any assignable interest. "Wherever this should be found to be the case, any attempt by the bailee to, assign any interest in the property bailed, would be regarded as putting an end to the bailment on the part of the bailee, and the assignee would acquire no interest by the assignment, and would be liable to the action of the bailor, as a mere stranger would be. Such are all the cases where the bailment can properly be regarded as a personal trust in the bailee, and such in general are all those cases where the bailment is at will, that is, during the pleasure of both the parties.

But there is a large class of bailments, where the bailment is accompanied with other contracts or stipulations which affect its character, and give to the bailee other rights, not incident to a simple bailment, and where there is no personal confidence, and none of the characters of an estate at will, and where it would be entirely consistent with the analogies existing in the case of real estate, to hold that the bailee has an assignable interest, which may be transferred to a third person, and where such an assignment, upon the common principles governing the courts, would be enforced and protected as between the parties, and as against all persons whose interests are not injuriously affected by the transfer.

Of the cases which present themselves as falling within this class, would be the case of a pledge, or pawn, where there is ordinarily nothing like personal confidence, and the contract is in no sense determinable at the pleasure of a party, but the bailee has an interest, or, as it might be said, a quasi estate in the goods till they shall be redeemed.

In the same class would fall all the various cases of lien, where the bailee has a right, as against the bailor, to insist upon the possession of the property, until the lien is duly discharged by payment or the performance of other conditions.

In all cases of this character it might well be contended that a pledge is an incident of the debt, and passes with it upon its transfer. Southerin v. Mendum, 5 N. H. 420; Whittemore v. Gibbs, 4 Foster 484.

But the law seems to be well settled in the case of the pawn, that the pawnee may sell and assign all his interest in the pawn, or he may convey the same interest conditionally by way of pawn to another person, without in either case destroying or invalidating his security. Moses v. Canham, Owen. 123; Ratcliffe v. Davis, 1 Buls. 29; S. C. Yel. 178; Cro. Ja. 244; Jackson, J., in Jarvis v. Rogers, 15 Mass. 408, 389; Mann v. Shipner, 2 East 523; McComb v. Davis, 7 East 6, 7; Goss v. Emerson, 3 Foster 42; Cross on Lien 72.

But if the pledgee should undertake to pledge the property (not being negotiable securities,) for a debt beyond his own, or to make a transfer thereof to his own creditor, as if he was absolute owner, it is clear that in such case he would be guilty of a breach of trust, and his creditor would acquire no title, (beyond that held by the pawnee, says Story Bailm. 215.) It would admit of controversy whether the creditor could retain the pledge till the original debt was discharged, and whether the owner might not recover the pledge, as if the case was a naked tort without any right in the first pledgee.

In the case of liens it is settled that a factor, having a lien on goods consigned to him for sale, for advances, or for a general balance, has no right to pledge the goods generally, and if he does he conveys no right to the pledgee. But it is admitted that the factor has a right to assign or deliver over the goods as a pledge or security to the extent of his own lien thereon, if he avowedly confines his assignment or pledge to that, and does not exceed his interest. Mann v. Shipner, 2 East 523-9; McComb v. Davis, 7 East 6, 7; Kenkein v. Wilson, 4 B. & A. 443; 1 Bell Com. 483; 2 Bell Com. 95; Urquhart v. MeIver, 4 Johns. 103; 2 Kent Com. 626; Story Bail. 216; Whitwell v. Wells, 24 Pick. 31.

The case of letting to hire may fall in either of the two classes into which, for our present purpose, we have divided bailments. Such a letting may be at will, or it may partake of the character of a license, or personal confidence, in either of which cases the hirer will have no assignable interest. But it may also be a letting for a fixed time, and without restriction or limitation from which any personal confidence may be inferred. It may be in terms to the party or his assigns, or the character of the use may be such as necessarily to imply that the property may be assigned. And in every such case the hirer may be deemed to have an assignable interest. Thus, a party may lease his farm for years, with the stock and tools upon it. The whole lease, it can hardly be doubted, may be assigned. A party may let furnished lodgings for a term; the lessee has an assignable interest' in the furniture. A sheriff, who seizes such interest on execution is liable to the lessor neither in trover nor trespass. Putnam v. Willey, 8 Johns. 432-5; Ward v. McAuley, 4 D. & E. 489; Gordon v. Harper, 7 D. & E. 9; Edw. Bail. 314. So a party who should lease his livery stable, with his stock of horses and carriages, for a term of years, could hardly complain if the lessee should assign his interest, unless some restriction was introduced in the lease. And the shipowner who should let his vessel for a year, could hardly object if the charterer should assign his interest to another pending the term.

Applying these principles in the present case, the result would be, that as the interest of Young was not a simple bailment, terminable at the pleasure of the parties, and as it rested on no personal confidence, but was connected with a contract, which gave him a right to keep the steers and use them till he paid for them, if he did that in a reasonable time ; and to the absolute title to the property whenever such payment should be made, he had an assignable interest in the steers, a right to sell his interest, or, in other words, a right to sell the property, subject to the claim of Colby, the defendant. If his sale was of his interest only, he had done no wrong, and his assignee, the plaintiff, was entitled to hold the property as he held it by his contract; and Colby had no right to resume the property from Bailey, more than he had from Young himself, until the reasonable time for payment had passed, and until after he had requested payment without success.

When Bailey, the plaintiff, went with Young to Colby, before any demand made for payment, and tendered him the balance due for the steers, the property became at once vested in Bailey, and Colby had no longer any right to interfere with it, and he was a trespasser, as any stranger would be, for taking it away. Colby had no right to ask payment of any other claim he had against Young; and Bailey, to perfect his title, was bound only to pay the amount Colby had agreed to take for the steers.

But if the sale by Young was a sale of an absolute title to the steers, in disregard of the claim of Colby, Colby might treat the contract with Young as violated, and the bailment at an end, and resume the property at once, doing no unnecessary damage and using no violence, without liability for any damage for the taking, or for any entry on land of Young or Bailey to obtain the possession of it.

The cases on this subject are none of them’inconsistent with our views, so far as we have discovered. The case of Sanborn v. Coleman, 6 N. H. 14, was of the hiring of a mare for four weeks, and a sale absolute to the defendant a few days after. It was held that the sale was wrongful, and a conversion, which authorized the plaintiff to consider the contract at an end, and to claim possession of the mare wherever she could be found.

In Sargent v. Gile, before cited, the plaintiffs delivered furniture to one Wilson upon a contract that he should keep it six months, and if in that time he paid for it, he was to have it; otherwise he was to pay an agreed price for the use of it. Wilson sold and delivered the furniture to the defendants, who knew nothing of the contract, but bought the property supposing it to be his, and the bailment was ended, and the bailor might recover the goods in trover. The case of Lovejoy v. Jones, 10 Foster 165, was of a similar character.

In Vincent v. Cornell, 13 Pick. 294, oxen were sold to be returned on a fixed day, unless a certain sum was paid. The buyer sold the oxen, and the court held that the original buyer had a right to dispose of -the possession with his right, such as it was, and the sale did not terminate the bailment.

In Loeschman v. Machin, 2 Stark. 311, where the hirer of a piano sent it to an auction to be sold, it was held a conversion; and it is apparent the transfer could not have been limited to the hirer’s interest merely. Wilkinson v. King, 2 Camp. 335, presents the same point, and Samuel v. Morris, 6 C. & P. 620; Emerson v. Fisk, 6 Greenl. 200, and Galvin v. Bacon, 2 Fairf. 28.

The case of Davis v. Emery, 11 N. H. 30, tends to support our view of the law. It was there held that when a cow was taken, under a contract that she was to remain the plaintiff’s property till paid for, and she was bailed by the buyer to another person to keep, no action could be maintained against such bailee, till demand of the price, and of the animal. And the case of Nash v. Mosher, 19 Wend. 431, folly sustains it; where it was held generally, that a party having a lien upon goods may transfer the possession, subject to the lien, to a third person, who may lawfully hold the property until the lien is paid; but if the transferee sells the goods, the owner is remitted to his original rights, freed from the lien, and may bring trover against him.

Upon the facts reported in the case, which was evidently tried without any distinct reference to the distinction we make, it seems most probable that the sale was a rightful sale, made with the knowledge on both sides of Colby’s interest, and subject to the performance of the contract with him. This was the view of the court upon the trial, and the verdict was taken by consent upon an intimation of that opinion.

It was a question proper for the jury whether the sale was of Young’s interest merely ; but that does not seem to have been made a question. Unless it'is supposed there is room for a controversy upon this fact, there must be

Judgment on the verdict.