Smith v. James

7 Cow. 327

• Court: New York Supreme Court
• Decided: May 15, 1827
• Status: Published

Opinion

Curia, per Savage, Ch. J.

Two points are raised: 1. That the action should have been brought by Herriman & Nash; and 2. That the plaintiff and Harrington were partners as to the whiskey.

As to the first point; it is perfectly well settled, that an action of trover may be brought by the general owner, or by a person having a special property.

[1] The plaintiff was the general owner; and till the property passes from him, it draws to it the possession, so as to enable him to prosecute in this action.

I am free to admit, that the consignees in this case, had, by the plaintiff’s letter, such an interest in the property consigned to them, as would have enabled them to sustain the action. In Fowler v. Down, (1 B. & P. 47,) chief justice Eyre says, “It is not true that in cases of special property, the party must once have had possession, in order to maintain trover; for a factor, to whom goods have been consigned, and who has never received them, may maintain such an action.” But the action cannot be maintained by both general and special owner; and a recovery by one is a bar to an action by the other.

The case of Haille v. Smith, (1 B. & P. 563,) cited by the the defendants’ counsel, is not applicable. The question there was between the parties to the consignment. The property was consigned to cover a special responsibility; and the law between principal and factor did not arise. It was consigned upon a special agreement. Ho such agreement existed in this case.

The defendants are strangers, who have officiously intermeddled with this property; and it is sufficient for them that they can be made responsible but once.

"••"As to the second question; I cannot see that Barring-ton had any possible interest in the whiskey. The excess for which it sold, beyond the value of the grain, was to be a compensation for his labor; and even that was not to come out of the avails of the whiskey. Harrington had already received his pay; but the amount was not liquidated, and could not be, till a sale of the whiskey took place.

There is, therefore, no ground for setting aside the verdict, appearing upon the case. [The chief justice also examined the motion as it depended on newly discovered evidence ; which it is not deemed material to notice.]

Hew trial denied.

See ante, note to p. 300.