Carpenter v. Dresser

• Decision Date: 08 June 1881
• Citation: 72 Me. 377
• Parties: CHARLES H. CARPENTER v. WILLIAM H. DRESSER.
• Court: Maine Supreme Court

72 Me. 377

CHARLES H. CARPENTER v. WILLIAM H. DRESSER.

Supreme Judicial Court of Maine.

June 8, 1881

ON EXCEPTIONS from superior court, Cumberland.

TRESPASS against the sheriff for the act of his deputy in attaching certain oil paintings, frames, silver plated ware, and other articles, on a writ against Morgan and Davenport, who were at the time auctioneers employed by the plaintiff to sell the goods at auction.

The attachment was made while this plaintiff was at tea, on his return he found the goods in charge of the keeper, who refused to allow him any control over the property. Whereupon he left the premises and did not return.

Other material facts stated in the opinion.

M P. Frank and N. and H. B. Cleaves, for the plaintiff, cited: Neff v. Thompson, 8 Barb. 215; 1 Waterman Trespass, § 619; Gibbs v. Chase, 10 Mass. 126.

Strout and Holmes, for the defendant.

At the trial the plaintiff relied upon Gibbs v. Chase, 10 Mass. 125, and some remarks in that case would seem at first sight to justify the ruling requested by the plaintiff. SEWALL, J. says: " He who interferes with my goods, and without any delivery [authority?] by me, and, without my consent, undertakes to dispose of them as having the property, general or special, does it at his peril, to answer me the value in trespass or trover, and even a subsequent tender of the goods will not excuse him, if I demand the value."

Now in the first place that case did not call for any such adjudication. No defence was made in that case of return, and no question, not even one of damages, was raised, which could depend upon a return or tender of return. These remarks of Judge SEWALL, were therefore purely obiter dicta.

Stickney v. Allen, 10 Gray 352, was an action in which return of the property was set up, and the court ruled that it would not affect the damages " " " if rightly rejected."

It is also said, " Where one has committed a trespass, the party injured is not obliged to take back the property. It would afford an inadequate remedy. The property may have deteriorated. It would not therefore be safe to say that a redelivery of the goods should be taken in discharge of the trespass." It is plain that the court was here considering the question of a return as a defence to the action, which it is not. It is only material upon the question of damages. Robinson v. Mansfield, 13 Pick 139.

So in Waterman on Trespass, § 438, it is said: " No tender will at common law either bar an action for a tort, or take away the right to full compensation." But " full compensation" is payment for the loss incurred by the plaintiff, and this is attained, when the trespasser goes off and leaves the property in the place and condition in which it was found by him upon the plaintiff's premises, if the damages caused by the interruption of free use and possession are paid for.

In Otis v. Jones, 21 Wend. 394, cited in the note to this section, the New York court held that an offer to return after suit could not relieve the defendant from paying the value. This is contrary to the well-established doctrine in our State, and shows that the rule of law in relation to mitigation of damages stands on a different ground from that in Maine and Massachusetts. Prescott v. Wright, 6 Mass. 20; Squire v. Hollenbeck, 9 Pick. 551; Pierce v. Benjamin, 14 Pick. 356; Higgins v. Whiting, 24 Wend. 379.

Two other cases, in which the doctrine contended for by the plaintiff seems to be held, are based upon Gibbs v. Chase, as authority. Connah v. Hale, 23 Wend. 462; Wooley v. Carter, 7 N. J. L. (2 Halst.) 85.

On the other hand, the Supreme Court of Massachusetts, in a lengthy opinion have said: " Upon the question concerning the amount of damages to be recovered, the court should have adopted the prayer of the defendant, and have instructed the jury that his having given the plaintiff notice … that the association had relinquished all claim to the machinery, … and the fact that the machinery had never been appropriated to their use, nor moved from the place where it had always been, should be considered in mitigation of damages." Delano v. Curtis, 7 Allen 470; So as in trover, Woodbury v. Long, 8 Pick. 543; Wheelock v. Wheelwright, 5 Mass. 104.

The doctrine of the charge in this case is also laid down in Sedgwick on Dam. 689, 690, 691; Brandon v. Allen, 28 La.Ann. 60. An intermeddling with another's property, any tortuous act by one person toward another, cannot exonerate the other from the duty to use ordinary care so as not to further damage himself thereby. Plummer v. Penobscot Lumber Ass'n, 67 Me. 363.

PETERS J.

A deputy sheriff wrongfully attached the plaintiff's goods, dispossessing the plaintiff and putting a keeper in charge of his store. On the next day, the deputy tendered to the plaintiff a return of the goods uninjured, and in the same condition as when attached the day before. The plaintiff refused to receive them.

It was ruled, at the trial, that the damages for the attachment and taking, should be limited to any injury necessarily sustained by the plaintiff, by the disturbance of his possession from the date of the attachment to the date of the offered return. This was error. The general rule of damages applies in such case. The plaintiff was entitled to recover what the entire property was worth when it was attached. A return of property in mitigation of damages could not be forced upon the owner against his consent.

When repossession and redelivery are spoken of, in the cases relied upon by the defendant, as going in mitigation of damages, it has reference to a return of the property with the consent of the owner. A person cannot be said to...