31 N.Y. 490, Boyce v. Brockway

• Citation: 31 N.Y. 490
• Party Name: JOHN BOYCE and others, Respondents, v. JESSE BROCKWAY, Appellant.
• Case Date: March 01, 1865
• Court: New York Court of Appeals

Page 490

31 N.Y. 490

JOHN BOYCE and others, Respondents,

v.

JESSE BROCKWAY, Appellant.

New York Court of Appeal

March 1, 1865

Page 491

[Copyrighted Material Omitted]

Page 492

COUNSEL

A. Becker, for the appellant.

S. L. Mayham, for the respondent.

DAVIS, J.

The offer to show that one of the plaintiffs had assigned his interest in the cause of action and was not then the owner thereof, was properly excluded. That fact, if proved, would not affect the right to proceed with the action (Code, § 121), nor would it present any question for the jury. The offer also to show that "the plaintiffs, other than Mattice," were not partners, was properly excluded. Evidence had been given to show that all the plaintiffs were partners in, or joint owners of the butter in question, and the offer should have been directed to that fact. It was quite immaterial to show that three of the plaintiffs were not partners aside from the fourth, in the butter, for the plaintiffs' proof that the partnership consisted of four persons, was necessarily a concession that it did not consist of three.

The motion for nonsuit was correctly disposed of. The plaintiffs had shown substantially that several firkins of this butter, which had been sent to them by Brown, had been delivered to defendant at Catskill; that he had received the same with notice that some portion of the butter belonged to plaintiffs, and afterwards shipped it as his own to New York. This was a very clear prima facie case, and it would have been error to have taken it from the jury by granting the motion for nonsuit.

The defendant gave evidence tending to show that he received the butter in question in good faith, supposing it to be his own, and without any knowledge that it belonged to plaintiffs. He requested the court to charge that "in that case if he took the same care of it as his own, and it was lost without his fault, this action was not sustained." The

Page 493

charge as requested would have been proper if the defendant had, under such circumstances, simply received the butter and stored it in his warehouse. Such an act would not have been the exercise of such dominion over it, as would amount to a conversion without proof of a demand and refusal. There would be no sufficient assumption of ownership by a mistaken acceptance of the property so delivered, to render him chargeable for any relation beyond...