Sun Mutual Insurance v. Talmadge

4 Daly 539

• Court: New York Court of Common Pleas
• Decided: November 15, 1873
• Status: Published

Opinion

Daly, Oh. J.

—The sale of the coal was a conversion. Thorn had no right, under the contract, to sell it. The agreement was, that he was to save it from the wreck at his own expense, and with the utmost dispatch deliver it on shore in a safe and convenient place, for transhipment, for which service he was to receive 65 per cent, of its value at the time and place of delivery, which amount was to be paid by the plaintiffs on receiving due notice of its delivery. If Thorn had executed the contract, the utmost that he could claim would be a lien upon the coal for the stipulated compensation—that is, the right to> retain it in his possession at the place of delivery until he was paid, or to foreclose the lien in the mode allowed by law. A sale of it by him would be an unauthorized and wrongful act, which would discharge the lien and make him accountable to-the plaintiffs for the full value of the coal at the time of the conversion. The defendant could have no greater right than Thorn had under the contract. It is admitted that he knew nothing of the contract which the plaintiffs had made with Thorn, but he knew that the property belonged to the plaintiffs, and it behoved him to ascertain whether Thorn had any right to sell the coal, before making a contract with Thorn, by which Thorn agreed that the defendant might sell it. He acted under the contract without inquiring whether Thorn had any right to make such a contract, and that contract can afford him no protection.

He is answerable to the plaintiffs for the full market value of the coal at the time of the conversion, which I must take to be the amount he sold it for—$362 50—which is all that there is before me in respect to its value. But it does not follow that he has no claim for the services rendered in rescuing the coal from the wreck. Thorn could maintain no action upon his contract with the plaintiffs to recover from them the 65 percent., as he could not show that he had performed the contract by delivering the coal on shore in a safe and secure place for transhipment, as by that contract he stipulated to do. Performance is on his part a condition precedent to any claim for the stipulated compensation under the contract, and this he could never show, as that contract was violated by the contract he made with the defendant, and the performance of it rendered impossible, by the defendant carrying out the contract which Thorn made with him, or the contract which Thorn made with the defendant might be treated as an assignment to the defendant of whatever interest Thorn had in that contract. In the contract with the defendant, Thorn agrees that the defendant may take all the coal he can get from the wreck and sell it for the best price he. can obtain 11 for all parties concerned,” and that the defendant is to receive 65 per cent, of whatever the coal may sell for, Thorn to bear no part of the expense incurred in recovering it. There is no stipulation in that contract that the defendant is to pay anything specifically to Thorn out of the proceeds of the sale, the agreement being that it is to be sold for all parties concerned. The plaintiffs are the upa/rties concerned ” in what remains under this agreement, after the 65 per cent, of the value of the coal is taken by the defendant; and if the defendant had paid over to the plaintiffs the amount received beyond the 65 per cent, and they had accepted it, Thorn would be precluded from all claim against the plaintiffs for the services rendered in rescuing the coal by the effect of the agreement he made respectively with the plaintiffs and the defendant. The agreements, taken together, show who were the parties concerned in the sale of the coal, after the 65 per cent, of the value was allowed; so that, in no aspect of the case, can Thorn recover anything from the plaintiffs for the services rendered.

But the defendant stands, in respect to the plaintiffs, in a very different position. He knew nothing of the contract between them and Thorn. He is placed in his present position in respect to them in consequence of the wrongful act of Thorn. He is called upon to make full restitution to them for disposing of their property without authority, which came into his hands from a third party, under an agreement from that party, that he might sell it for the benefit of parties concerned. They sue him for damages; and the right to damages is founded upon the principle of indemnity, where there is no ground, as there certainly is not, in this case, for exemplary damages. The coal was of little, if of any, value while it lay under water. The specific value subsequently attached to it was the result of the defendant’s service in rescuing it, and the value of that service T must assume to be what the plaintiffs, by their agreement with Thorn, agreed to pay for it. In this action, the plaintiffs have no right to claim more than they have actually lost, which is the value of the coal at the time the defendant sold it, after deducting 65 per cent, of the amount it sold for, for the defendant’s services in rescuing it. The plaintiffs’ recovery, therefore, must be limited to $126 87, with interest on that amount from the day of the sale.

Judgment for plaintiffs accordingly.