Brady v. Whitney

• Decision Date: 29 November 1871
• Citation: 24 Mich. 154
• Court: Michigan Supreme Court
• Parties: James E. Brady and another v. William W. Whitney

24 Mich. 154

James E. Brady and another v. William W. Whitney

Supreme Court of Michigan

November 29, 1871

Heard November 3, 1871

Error to Lenawee circuit.

This action was brought by William W. Whitney, against James E Brady and Charles F. Avery.

Judgment reversed, with costs, and a new trial granted.

George L. Bachman, for plaintiffs in error.

William W. Osborn, for defendant in error.

OPINION

Campbell Ch. J.

The action below was in trover. Whitney had leased a melodeon to one Beach. It was levied on and sold, on an execution against Beach, under circumstances which are admitted to have made the sale a conversion. At some time after this conversion, but whether before or after this suit was commenced is not clear, Whitney sold the melodeon to one Eaton, and some question also arose whether he had not also assigned his right to sue for damages, to the same party. These points being litigated, the court charged the jury upon certain questions on which the defendants below took exceptions. The jury found a verdict for full value.

Among other things, the court charged, first, that no sale of the property to Eaton after this suit was commenced would affect plaintiff's right to recover; and, second, that a sale of plaintiff's claim for damages by reason of the unlawful taking and carrying away of the property, would not affect plaintiff's right to recover. Other rulings either rest on similar grounds, or become less material in view of the importance of these.

The second ruling seems to rest on the idea that a right of action in trover is not assignable. But we held in Final v. Backus, 18 Mich. 218, that such a right relating to property was assignable. Whether the right to sue for damages could be assigned to one person, and the right in the property converted to another, is a question not arising here. There was nothing tending to prove any sale of such a right independent of the title to the melodeon, or of the claim for its full value. And we think, therefore, that this ruling was erroneous. The case of Tome v. Dubois, 73 U.S. 548, 6 Wall. 548, is entirely analogous, and in accordance with Final v. Backus. The transfer is really a transfer of property, and not of a mere right of action for a tort.

We think, also, that the other ruling was incorrect. The general rule is, that a defendant in trover, against whom damages are given for the full value of the property converted, gets...