Perley v. Brown

18 N.H. 404

Opinion

Gilchrist, J.

The case made by the. plaintiff is, that he himself and the defendant, William Brown, were prosecuting in copartnership the business of manufacturing doors, blinds, sashes, and other things, and had in their possession a quantity of stock, which was in the process of manufacture; that on the 18th of April, 1840,the defendant named abandoned the business, and that immediately afterward the other defendant, Lorenzo D. Brown, with the aid of William, without the plaintiff’s consent, removed the stock from the shop to Concord; that he retained and refused to deliver it to the plaintiff, or to account for it. The bill further states that the plaintiff has paid some of the debts of the firm, and is entitled to the possession of the property for his remuneration and indemnity.

But it 'appears in evidence that the possession which Lorenzo D. Brown took of the property was in consequence of a receipt for it, which he had given to an officer who had attached it to satisfy claims against the firm, and that this bailment was assumed by him, at the request of the plaintiff himself. The defendant had, therefore, a right to remove the goods, and to retain them for the purposes required by the receipt which had been given for them. The plaintiff’s case is, therefore, disproved, and if there were no other impediment, he could not prevail, since he can do so only secundum allegata et probata. And if the case had been stated as it has been proved, an answer would have been, that the defendant, Lorenzo X)., having become accountable to the officer by a legal eon- tract assented to by the plaintiff’, another party cannot call him to account, at least without first showing that the purposes for which the bailment was assumed have been fully satisfied, and that the party suing is the one entitled to the goods next in succession, cither as the general owner, or as having a right to the possession on other sufficient grounds.

It does not appear that the officer has not a claim upon the goods receipted for, to satisfy the demands on which they were attached.

Supposing these demands to have been satisfied, and that the general owner of the goods would be entitled to demand them of the reeeipter directly, the plaintiff is not such general owner, nor does he state or prove any collusion between his partner and the other defendant, such as to justify the bringing of this suit upon the ground of fraud.

Aside, therefore, from several questions which have been made upon the evidence and otherwise, it is apparent that the plaintiff makes no case by his bill, nor does the evidence furnish one.

Bill dismissed.