Kidd v. Belden

19 Barb. 266, 1855 N.Y. App. Div. LEXIS 2

• Court: New York Supreme Court
• Decided: March 5, 1855
• Status: Published

Opinion

By the Court,

Johnson, P. J.

This is a very peculiar case. All the questions of any moment, with one- or two exceptions, arise upon the charge of the judge, and his refusal to charge as requested. The action was replevin, and of course it was necessary for the plaintiff to make out title to the property, to enable him to recover. The plaintiff was the manufacturer of the boiler, engines and other things for .the recovery of which the action was brought, and put them into the defendant’s boat upon a contract by which he was to be paid a certain specified price, a portion of which was to be secured to the plaintiff by a chattel mortgage upon the property thus furnished, to be executed by the defendant when the plaintiff had completed his contract. After the engines and boiler were placed and partially fastened in the boat, and while the plaintiff was prosecuting, but before he had finished his work and was ready to deliver it to the defendant as finished, the latter clandestinely went off with the boat to Canada, and on his return refused, either to execute the chattel mortgage, or to permit the plaintiff to remove the engines and other things thus furnished, or to pay for them. The judge charged the jury that under such circumstances the plaintiff had not lost his title, unless they should find, from the evidence, that the plaintiff had intended to deliver thé machinery absolutely and unconditionally to the defendant, trusting to his personal responsibility for payment and security; or unless the machinery had been so annexed to the boat that it could not be removed without serious and substantial injury to the boat. The jury found both facts in favor of the plaintiff. This portion of the charge was, I think, clearly correct. The defendant’s counsel insists that as the machinery was put into the boat as an essential and substantial part of it, without which it could not be what the parties intended to make it, a steamboat, the engines and boiler, when placed and fastened there, necessarily and inevitably became a part and parcel of the boat, and the plaintiff’s interest attached by way of lien on the vessel. It is undoubtedly true that the plaintiff might have had a lien upon the vessel, had he elected to waive his rights under his agreement, and look only to the rights which the statute gives independent of any stipulation. But it is equally certain that the parties could control this by agreement. And the evidence shows clearly that they undertook to do so, and stipulated that the plaintiff should have a chattel mortgage upon the engines and boiler for his security. This would vest the legal title in him. There was nothing to prevent this, as the jury have.found that they were not so annexed to the heat but that they could be removed without essential injury to it. There is certainly no legal impossibility in the title to the engines and boiler being in one person, and the hull of the boat in another. It is clear that the failure of the plaintiff to complete his job by the time specified, affords no justification to the defendant for taking the property before it was delivered or ready for delivery, nor for refusing to deliver it when demanded. The plaintiff had lost his title neither by delivery unconditionally, nor by annexation, and his right to maintain the action is clear.

The most important and difficult question in the case arises upon that portion of the charge, fixing the rule of damages. The property was not delivered to the plaintiff upon the process, but was retained by the defendant, in the boat. The judge charged the jury that in estimating the damages they were to be governed by the value established by the parties in their contract, as far as it could be applied. And that the value of the property which was found to' be the plaintiff’s was to be assessed in the condition in which it was at the time of the demand.

In the course of the trial the judge ruled that the defendant might show that the machinery was not such as was contracted for. That is, as I understand the ruling, not of the same kind or character. But that he could not show that the machinery was not constructed and placed in the boat in a workmanlike manner. To this ruling there was an exception, and it is important to consider this in connection with the rule of damages as established on the trial and excepted to in the charge. It appears clearly, from the evidence, that the defendant prevented the completion of the work by going off with the boat secretly and without the plaintiff’s knowledge or consent, before the job was pretended to be finished. That when the defendant returned with the boat a few days after, the plaintiff requested permission to go on and finish the job, which the defendant refused to grant. That some portions of it were found to be somewhat defective, and that the plaintiff expected to alter such portions, and finish them properly before he got through, and would have done so, but for the removal of the boat by the defendant. Under such circumstances, ought the defendant to be allowed to set up such defects in mitigation of damages, when called upon to respond for the value of the property ? Clearly not. He is concluded by his election to take the work in that condition, and must be held to have accepted the job as finished, and to have waived all such defects. He cannot be heard to allege the non-performance which he occasioned. The presumption is that such defects would not have existed, had the plaintiff been permitted to finish his work. In an action between the same parties, brought by the defendant against the plaintiff, to recover damages for the defective character of the work, in its construction and adjustment and fastening in the boat, I held the same way, both at the circuit and subsequently at the special term, on motion for a new trial. I am satisfied, upon the most mature consideration, that this ruling was correct, upon the plainest principles of justice

The defendant, on the trial, by way of reducing damages, offered to show what the machinery furnished by the plaintiff would be worth detached from the boat, and that, detached from the boat, it was not worth over $1000. He also offered to show that the machinery in the boat, as it was when demanded or placed there, was not worth over $1500. Both offers were overruled. The judge also ruled that the plaintiff’s labor in putting the machinery into the boat, entered into and formed part of its value to be- assessed by the jury. All these rulings are in accordance with the rule of damages laid down in the charge to the jury. And if the measure of damages established is the true one in cases of this kind, these rulings are all correct. Was the contract price, therefore, the true measure of damages for this case, so far as it could be applied ? Ordinarily in actions of this kind, the value of the property which is the subject of the action, and the damages for its detention, are the only damages to be- reeoveredj and these are to be determined from the evidence on the trial. This was a clear departure from the established rule in such actions, and it is to be seen whether the ruling can stand upon any known legal principle. It is certain, I think, looking at the situation of the parties, and the property, and all the surrounding circumstances, that it is a proper case for an exception to the general rule, if one can be found which will render an exception proper. In the first place, the machinery was not such as is ordinarily used in steamboats, but was necessarily somewhat peculiar in its structure as well as in its adjustment, in order to adapt it to the defendant’s boat. It would not readily answer for other steamboats; and if separated from this boat, it would become greatly lessened in value, and as an'article for the general purposes of sale by a manufacturer would be comparatively worthless. It was made of this form and general character, for the defendant, at his request, and upon an agreement with him, and placed in his boat upon his agreement to pay a specified sum for it. The defendant upon his agreement not only to pay this sum, but to secure the payment of a portion of it by a chattel mortgage upon the whole, which would vest in the plaintiff the legal title, induces the plaintiff to construct this machinery thus valueless for ordinary purposes, and on the faith that the defendant will perform on his part. And in pursuance of his agreement the plaintiff puts the property thus manufactured, upon the defendant’s boat, thus placing the latter in a situation to seize and control it in defiance of the plaintiff and his rights, and in violation of his own promise, which had brought the property into this situation. The defendant thus situated, takes the property before it is délivered, and before it is entirely ready for delivery, and controls it, refuses. to let the plaintiff finish it, refuses to make payment and to give the mortgage, and refuses to give it up to the plaintiff on his demand. The plaintiff is therefore, by these wrongful acts of the.defendant, driven to the necessity of bringing his action upon the contract, thus trusting wholly to the personal solvency or pecuniary responsibility, of the defendant which he was not to do by his contract, or to pursue the property and obtain compensation from that. Having elected to pursue the property, is the plaintiff to be placed in a worse condition than he would have been had the defendant fulfilled his promise ? In other words, is the defendant, who has thus procured another to place property within his reach, to be permitted to appropriate it wrongfully, and by means of his own wrong obtain it for a less sum than he agreed to pay 1 I think not; and I confess I can see no other measure of damages which would so effectually mete out full justice to the parties. The defendant should be estopped from saying that it was not worth what he agreed to pay for it, under the circumstances ; and I do not perceive why the principle of estoppel does not apply with full force to the case. It may well be that the defendant could have proved that the machinery in the boat was worth much less than he agreed to pay; and this might have arisen in part from some defects in some of its parts, and in part from the partial failure of the experiment of using such machinery for such purposes. But the plaintiff was not to be held responsible in a case like this, for a diminution in value from such causes. The defendant availed himself of the plaintiff’s labor in placing the machinery in his boat. The labor added to the value of it, to the defendant, when it was so placed ; and there is no reason-why this labor should not be regarded as part of'the value of the machinery to be assessed against the defendant. It was as necessary and as valuable as the labor bestowed in the manufacture. It was bestowed by the plaintiff in performance of his contract. It rendered the machinery efficient, and thus entered into and became essentially a part of it, to the defendant, and'it was this value added to the machinery which has been recovered in this action, and not the value of work and labor, as such. There is no pretense that the machinery was not of the kind contracted for. I have not been able to find any reported case in its main features analogous to this, and none was cited upon the argument. Upon the point, however, of assessing the value of the machinery as it was when affixed to the boat, the case of Thompson v. Pettitt, (10 Adol. & Ell. N. S. 101,) may be regarded as an authority. In that case certain fixtures had been assigned by a tenant by way of security, which were valued at £80, and were worth that sum as attached to the house and to be sold with the lease or to the next tenant. Subsequently the tenant went into bankruptcy, and his assignee in bankruptcy severed the fixtures from the house and sold them for £30, which was a fair price, in the severed state. In trespass for the fixtures, brought by the first assignee, the court held that the plaintiff was entitled to recover the £80, and that the defendant could not take advantage of his own proceeding in separating the fixtures, to reduce the value. The judge also instructed the jury to exclude such portions of the machinery as were not put in by the plaintiff, and to allow the defendant what he had paid. But that if any portion of the materials furnished by the plaintiff, had been so annexed that the plaintiff had thereby lost his title, they might apply the payment made to such portions. In this there was no error against the defendant. The effect of it was to give the plaintiff title to all the machinery which could be removed, and to give the defendant title to such portion of the materials as had become so attached that they could not be removed, and to give to him the benefit of all payments he had made over and above the value of such parts as had become his. This was certainly as favorable to the - defendant as he could reasonably ask; and if there was any error in the ruling on that score it was one of which he cannot complain.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. R. Strong, Justices.]

On the whole, I am of opinion that no rule of law has been violated either in the charge to the jury or in the refusal to charge as requested, or in the decisions in the course of the trial; and that a new trial should be denied.

New trial denied.