Searle v. Parke

• Citation: 68 N.H. 311,34 A. 744
• Court: Supreme Court of New Hampshire
• Decision Date: 26 July 1895
• Parties: SEARLE v. PARKE et al.

34 A. 744

68 N.H. 311

SEARLE

v. PARKE et al.

Supreme Court of New Hampshire. Merrimack.

July 26, 1895.

Action by George F. Searle against a. J. Parke and another. Judgment for defendants.

Trespass de bonis, with a count in trover, for taking and carrying away and for the conversion of a diamond ring. Facts found by the court: The defendants were engaged in decorating the Statesman Building, and employed B. and S., two irresponsible strangers, to assist them. June 20, 1884, it became convenient in the prosecution of the work to enter, in his absence, the plaintiff's room in the biulding, to the exclusive possession of which he was entitled, and the door of which was locked. B., by direction of the defendants, entered the room through the window, and admitted S. by the door. They remained there an hour or so, during which one or both of them stole the ring. Neither of the defendants entered or went near the room. The plaintiff moved for leave to amend by filing counts in trespass q. c. and in case.

Sargent & Hollis, for plaintiff.

Albin & Martin, for defendants.

CARPENTER, J. On the facts stated, the defendants are not liable for the larceny of the ring in any form of action. To entitle the plaintiff to recover in trespass de bonis or trover, it must be shown that the defendants, personally or by their servants, acting within the scope of their employment, participated in the taking and conversion, or that it was taken for their benefit, and that they ratified the taking. 2 Greenl. Ev. § 031; Wilson v. Tumman, 6 Man. & G. 236, 242, 243; Lewis v. Read, 13 Mees. & W. 834. It is not claimed that the defendants took part in or ratified the trespass, and there is as little ground to claim that they are liable in their character as masters. Theft was not the business for which B. and S. were engaged, nor was it within the scope of their employment The mere fact that the wrongdoers were their servants is not sufficient to make the defendants answerable for the wrong. Wilson v. Peverly, 2 N. H. 548; Arthur v. Balch, 23 N. H. 157; Andrews v. Green, 62 N. H. 436. The plaintiffs could not recover in case against the defendants for negligently employing thieves as servants, because negligence is not found. In trespass quare clausum the defendants would be liable in nominal damages, at least, for the breaking and entering, which they directed. They would be responsible also for any damage directly caused by the act of breaking and entering, and for any...