Farrel v. Colwell

30 N.J.L. 123

• Court: Supreme Court of New Jersey
• Decided: November 15, 1862
• Status: Published

Opinions

The opinion of the court was delivered by the

Chief Justice.

Farrel was a constable, and had an execution in favor of Randall and Morrell against one Peter Cavalier, upon which he sold and delivered possession of a horse and harness claimed by the plaintiffs, Colwell and Calvalier, as purchasers from Peter Cavalier. The latter had been engaged in the kindling wood business, and the horse and harness was a part of the stock in trade. He sold out this stock, one half to Mulford Cavalier, his son, and the other to Colwell; each bought separately, and they carried on the business ostensibly as paidners. The plaintiffs-in execution, creditors of Peter Cavalier, insisted, on the trial, that the sale of the goods to Mulford Cavalier was void under the statute of frauds, as intended to defeat creditors,, and also that it was a mere pretence that Peter Cavalier was still the owner of the property. It was admitted that Colwell was a bona fide purchaser, and had good title to a moiety of the property.

Several reasons have been assigned for the reversal of the judgment, some of which it is not necessary to notice to determine the case.

Among other things, the court charged the jury' that if they should find that the sale of the half interest to Mulford was fraudulent in fact as to creditors, and that Peter’s interest in the property was liable to execution against his father, yet if it appeared by the evidence that the defendant levied upon and took the entire interest in the horse and harness, and sold and delivered them as entireties to the purchaser, he was a trespasser, because ho violated the lawful joint possession of both the plaintiffs in the property, and unlawfully deprived Colwell of his undivided interest in the chattels, and his possession thereof.

This charge is said to be erroneous, because upon an execution against one partner the officer may seize the partnership property, and sell the partner’s interest in it to satisfy his undivided debt, and deliver possession to the purchaser without subjecting bimself to tbo liabilities of a trespasser.

Without discussing this vexed question, and attempting to define to what extent an officer may go in executing a fi. fa. upon partnership property to satisfy the debt of a partner, it is sufficient to say that this case does not come within the reach of any of the decisions upon this point exempting the officer from liability.

In this case the officer sold the property as the sole property of Peter Cavalier, and delivered possession of it as such. The sale was not only in defiance of the right of Mulford Cavalier but of Colwell. There was a conversion of the whole chattels, not of the partner’s interest. Having sold the whole, and professed to pass title to the whole to the purchaser, the officer is estopped in this suit from saying that he did not sell Colwell’s interest. It would never do to permit an officer to sell the interest of all the partners, not as such, but ousting that interest by a sale of the chattels as the property of a third person, and when sued by those whose rights ho had destroyed as far as he had the power, to turn them out of court by saying, I had a right to sell the rights of one of you to satisfy his individual debt.

It is no answer to say that the officer could sell only the right of the defendant in execution; that he could not change the property of the others. That is so in every trespass. The property is not changed by the trespass, unless the owner elects to consider it so changed, and to bring his action for damages instead of for the thing itself.

Nor is the objection, that in the contingency contemplated by the charge, of Mulford Cavalier’s title being bad as •against the execution, so far' as it depended on the bill of sale, that the action could not be maintained by both against the officer, a sound objection.

The case was put to the jury without objection, upon the ground that there was a partnership between Mulford Cavalier and Colwell; if that was so, although the title of the firm might have been bad to the half of the horse and harness conveyed by the bill of sale to Mulford Cavalier, yet it was conceded to be good to the other half by reason- of the admitted bona fides of Colwell’s purchase. The plaintiffs could maintain a joint action, because they held a joint interest, in any event, in the moiety of the horse and harness, even if the bill of sale of the other moiety was fraudulent as to creditors.

The question should not have been presented as a bar to the joint action of the plaintiffs, but as affecting the damages to be recovered in the contemplated contingency of the mala fides of the sale to Mulford Cavalier. In that event, if Col-well had notice of the fraud, Mulford Cavalier’s moiety never passed to the firm, and they could not recover the whole value of the chattels sold; nor could they recover, if Colwell was without notice of the fraud, more than the value of Mulford Cavalier’s interest' as partner in the chattels.

The question, what the proper measure of damages would be in that view of the case, does not seem to have been distinctly presented upon the trial. ‘ The jury were instructed, in the event of no fraud being made out, to render a verdict for the whole value of the horse and harness, at the time they were- taken, to the owners in their business; but although they were instructed that if the fraud alleged were made out, yet the plaintiffs might recover because of the unlawful disturbance of the plaintiffs’ joint possession, and the deprivation by Colwell of his undivided interest in the property; yet they were not told to give in that case only the value of Colwell’s interest. The only exception touching the measure of damages, was to that part of the charge in which the court held as to damages, wliat has already been stated. The omission of the court to charge farther upon the measure of damages was manifestly an inadvertence, which would have promptly been corrected if brought to its notice at the time. The defendant neglected to do so. Not having made the point at the trial, he cannot have the advantage of it here. The rule upon this subject has long been well understood and •settled. If the verdict was no larger in consequence of this •omission of the court, the remedy, if anywhere, was in the •court below on application for a new trial.

It was insisted, as a reason for reversal, that the measure of damages, as propounded to the jury, was incorrect; that it should not have been the value of the horse and harness to the owners in their business, but tlieir absolute market value.

This was not a case for vindictive damages; the defend■ant was an officer serving an execution for a plaintiff who, so far as appears, was honestly asserting what he believed to be his rights; but notwithstanding, the defendants were entitled to be indemnified by the verdict. They were entitled to have the value of the horse as a horse to be used in their business, and fitted for that use. Perhaps he would not have been worth anything as a fast trotter or as a gentleman’s carriage horse, because not adapted to the work; but that would not depreciate his value as a cart horse, for which purpose he was to be used. The language of the charge may not have been as explicit as it might have been, yet if it does not assert any illegal proposition, as applied to the case, we cannot reverse the judgment; if the defendant desired it to be more full and explicit, he should have required an additional charge upon the point more- speoific in its character..

I perceive no error in the refusal of the court to charge-that the sale to Mulford- Cavalier was fraudulent in law. Nothing in the case called for such a charge. The terms of the sale were lawful, if not fraudulent in fact; whether they were so or not was a matter of fact to be determined by the jury.

The court did not submit to the jury the question, whether a partership existed between Mulford Cavalier and Colwell, and charged the jury that there was such partnership; there-was no exception to the charge upon this point, and for that reason no error can be assigned for that cause.