Megee v. Beirne

• Decision Date: 06 May 1861
• Citation: 39 Pa. 50
• Parties: Megee <I>versus</I> Beirne.
• Court: Pennsylvania Supreme Court

39 Pa. 50

Megee versus Beirne.

Supreme Court of Pennsylvania.

May 6, 1861.

ERROR to the District Court of Philadelphia.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James E. Gowan and Samuel Hood, for plaintiff in error.— 1. In support of the first point cited and relied on: 1 Ch. Pl. 168-9; Com. Dig. Trespass, B. 4; Corfield v. Coryell, 4 W. C. C. R. 387; Fitler v. Shotwell, 7 W. & S. 14; Ward v. Macaulay, 4 T. R. 489; Hall v. Pickard, 3 Camp. 136; Paine v. Whitaker, 1 Ry. & M. 99; Bloxham v. Saunders, 4 B. & C. 941; Gorden v. Harper, 7 Term R. 9; Putnam v. Wyley, 8 Johns. 432; Van Brunt v. Schneck, 11 Johns. 377. Plaintiff had no right to rescind the contract with his agents when the attachment was served, and therefore cannot maintain this action: Story on Agency, §§ 14, 401, 477; Hunt v. Rousmanier's Administrators, 8 Wheaton 174; Chitty on Contracts 214; Smythe v. Craig, 3 W. & S. 14; Raleigh v. Atkinson, 6 M. & W. 676. The measure of damages is the mere value of the goods: Wooley v. Carter, 2 Halst. 86; Floyd v. Brown, 1 Rawle 121; Fox v. Kensington, 3 W. & S. 106; Rogers v. Fales, 5 Barr 154; McElrath v. Kintzing, Id. 336. The verdict here was for full price, without any deduction for commissions, thus giving damages beyond plaintiff's interest as claimed by him; more than he could have recovered if the alleged trespass had never been committed: See Gorden v. Harper, 7 Term R. 9.

2 and 11. These two points are alike, and raise the question of justification by the writ, which was embodied in the demurrer. The matters therein alleged were not evidence under the general issue, which, in trespass vi et armis, restricts the defence to narrow limits: Step. on Pl., pl. 5, Am. ed.; Milman v. Dolwell, 2 Campb. 379; 1 Ch. Pl. 501-2; McBride v. Duncan, 1 Wh. 269; 2 Greenl. Ev., § 625. The plea was not intended to traverse the ownership as laid in the narr., but to confess and avoid by a justification under the writ, which was a proper defence: Watson on Sheriff 53; Belk v. Broadbent, 3 Term R. 185. His duty was not to ascertain the ownership, but obey the writ.

3 and 5. In support of these points the learned counsel cited Jenkins v. Eichelberger, 4 Watts 122. The sale under the agreement in evidence, if not absolute, was conditional between the parties, but was absolute as against creditors of vendee: Martin v. Mathiot, 14 S. & R. 214; Rose v. Story, 1 Barr 190; Stiles v. Whitaker, Phila. R. 271.

But if this were not so, the agreement created a partnership between these brothers, which rendered the cattle liable to attachment for a private debt of one of the partners: Morgan v. Watmough, 5 Wh. 125. Even if the court could not say that there was an attachable interest in Andrew Beirne, there was enough in the evidence to authorize the submission of the point of interest to the jury. The acts and declarations of the party were for the jury: Babb v. Clemson, 10 S. & R. 412; Thompson v. Franks, 8 Leg. Int. 193.

4. In support of this point they cited Russell on Factors 100; Story on Agency, § 420; Waters's Appeal, 11 Casey 523.

The remaining points relate to the effect of the proceedings in foreign attachment, or the right of the plaintiff below to recover, under which they argued,

1. That the judgment in the attachment that the cattle were the property of Andrew Beirne, estopped Oliver Beirne from denying it. It is a proceeding in rem, a process to determine the status of the property attached. If it belonged to defendant, it is condemned, if not, it is discharged. This is the reason for summoning the garnishees: Taylor v. Carryl, 12 Harris 267; 1 T. & H. Pr. 370; 4 Rawle 109; 2 Id. 37; 4 Binney 61; 9 Vin. Ab. 419, tit. Interpleader; Brooks's Abr., same title; McMunn v. Carothers, 9 Pa. Law J. 134. This is the reason why he was protected by the judgment: McDaniel v. Hughes, 3 East 367; Holmes v. Remson, 20 Johns. 229; Stevens v. Gaylord, 11 Mass. 256; Embree v. Hanna, 5 Johns. 101; Anderson v. Young's Executors, 9 Harris 443; Hull v. Blake, 13 Mass. 153; Moore v. Spackman, 12 S. & R. 287; Hunter v. Potts, 4 Term R. 182; Sill v. Worswick, 1 H. Bl. 665; Phillips v. Hunter, 2 Id. 402; 1 Starkie's Ev. 522; 1 Greenl. Ev., § 523; Peterson v. Lathrop, 10 Casey 228; Coates v. Roberts, 4 Rawle 100; Hammer v. Griffith, 1 Grant's Cases 193. See also, 6 Mass. 277; 1 Binn. 299; 4 Cranch 434; 3 Sumner 600; 23 Miss. 35; 2 W. Bl. 977; 3 Wheaton 246.

R. C. McMurtrie and James W. Paul, for defendant in error. —The points made by the plaintiff in error are,

1. Whether trespass lies.

2. Whether the writ justified the sheriff.

3. Whether, under the contract between Oliver and Andrew Beirne, there was, at the time of the seizure, an attachable interest in Andrew which justified the sheriff.

4. Whether the evidence showed that the agreement was intended to give the ownership in the cattle to Andrew, and reserve a lien for Oliver.

5. Whether an estoppel results from the statements of the agent, and

6. The effect of the judgment, &c., in the foreign attachment, in barring the action.

I. In support of the position, that trespass lies by a general owner, they cited and relied on Holly v. Huggerford, 8 Pick. 73; Sibley v. Brown, 3 Sheply 185-8; Overly v. McGhee, 15 Ark. 459; Lathrop v. Arnold, 28 Maine 138; Keyas v. Howe, 18 Verm. 412; Browning v. Skillman, 4 Zab. 351; Tufts v. McClintock, 28 Maine 424; Codman v. Freeman, 3 Cush. 306; Railroad Co. v. Hughes, 1 Jones 141, 146; Lelar v. Brown, 3 Harris 215, 217; Gillett v. Ball, 9 Barr 13; Dallam v. Fitler, 6 W. & S. 325; Read v. Rawlinson, 2 B. & P. 59; Putnam v. Wiley, 8 Johns. 435; Ward v. Andrews, 2 Chit. 636; Cox v. Ghee, 5 C. B. 542; White v. Morris, 11 C. B. 1015; Mahew v. Luttle, 4 E. & B. 347; Lucas v. Noskels, 4 Bing. 729; 1 Cl. & F. 438; Thorp v. Busling, 11 Johns. 285; Gorden v. Harper, 7 Term R. 12; 2 Sand. 47.

II. As to whether the writ justified the sheriff, they answered, the writ does not command the attachment of these particular goods. The direction for this is endorsed on the writ signed by plaintiff's attorney, which does not justify it. Even a writ is no justification without a judgment authorizing it: White v. Morris, 11 C. B. 1015; Shipman v. Clark, 4 Denio 446; Lathrop v. Arnold, 28 Maine 138; Cross v. Phelps, 16 Barb. 502; Bradford v. McLellan, 10 Shep. 302; Townsend v. Newell, 14 Pick. 332; Green v. Sharer, 3 Humph. 141; 6 Id. 153; Butler v. Borden, 6 Blackf. 160; Hutchinson v. Dull, 17 Verm. 133; Sibley v. Brown, 3 Shep. 186.

III. As to the agreement between Andrew and Oliver Beirne, they argued that as the cattle had been surrendered by Andrew to Oliver before the writ issued, all right by way of lien was out of the case. That, as Oliver, a creditor of Andrew, had bought the cattle, employed Andrew to fatten them, agreeing to give him credit on his claim to the extent of the enhanced value, and received them again at the completion of the contract to be sold, there was neither a sale, a conditional sale, nor a partnership between them, or any interest remaining in Andrew: Leigh v. Field, 8 W. & S. 232. The contract here was not for title, but for increased value: McCullough v. Porter, 4 W. & S. 177.

If the court below had affirmed this point, then the jury would have been at liberty to give to the contract a construction directly the reverse of what it meant. But the question of fraud as against creditors, was fairly submitted in the general charge, which was not excepted to.

Nor was there any evidence to sustain a charge of fraud, for the testimony showed the purchase and payment by Oliver; the contract to fatten by Andrew; a delivery to Oliver's agents when completed; a sale and receipt of the price by him of part of the cattle; and possession by one employed by him to sell; against which there were only the acts and declarations of an agent, without the knowledge of the owner, not acted on by any one.

V. As to whether an estoppel resulted from the statements of the agent, they argued that an estoppel in pais went no further than to protect to the extent that a party is misled; that it required a statute to validate a pledge by a factor for sale to a bonâ fide lender: Newbold v. Wright, 4 Rawle 195. A verbal misstatement does not conclude, especially after notice of the truth.

VI. As to the effect of the judgment in the attachment, they argued that the action was only quoad in rem, not strictly so: Stedman v. Perkins, 42 Maine 130. It is in rem, so far as the defendant in the writ is concerned, and also to protect the garnishee from the real owner, but not as to the right of property, or the right of the real owner as against him who sets the process in motion, or his indemnified agent, the sheriff: Serg. on Att. 11, 14, 15; 7 Peters 621. It is no more in rem than a fi. fa.; the language of both writs, and the action of the officer under them, is similar.

The analogous cases of sci. fa. on mortgages, &c., were referred to, where only parties and privies, not strangers or persons not served, are affected; Dengler v. Richner, 1 Harris 38; Cohoon v. Hollenbach, 16 S. & R. 425; Christine v. Manderbach, 2 Barr 363; Anshutz v. McClelland, 5 Watts 487. See also, 2 Smith's Lead. Cases 688. As to the liability of the sheriff, they cited 7 Peters 621; 5 Binn. 457; Serg. on Att. 185; Lucas v. Laws, 3 Casey 211; McCullough v. Grisholler, 4 W. & S. 202; Corson v. Craig, 1 W. C. C. R. 424; Banks v. McCall, 3 Binn. 338; McIntire v. Hodgson, 9 Barr 468; Coates v. Roberts, 4 Rawle 100; Moore v. Spackman, 12 S. & R. 287; Foster v. Sweeny, 14 S. & R. 386; Overly v. McGhee, 15 Ark. 459. That the owner was not bound to intervene, they showed from the fact that neither the statute, the practice, nor the authorities required it, and that the remedy, viz., the security given before the writ issued, was inadequate.

The opinion of the court was delivered, May 6th 1861, by WOODWARD, J.

If the herd...