Trudo v. Anderson

• Decision Date: 17 July 1862
• Citation: 10 Mich. 357
• Court: Michigan Supreme Court
• Parties: Octave Trudo v. LeGrand Anderson

10 Mich. 357

Octave Trudo v. LeGrand Anderson

Supreme Court of Michigan

July 17, 1862

Heard May 21, 1862; May 22, 1862 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Van Buren Circuit.

Trudo replevied of Anderson a horse. The case was tried by the Circuit Judge without a jury, and the following is the finding:

"1st. That the plaintiff was, in the month of July, 1860, in Canada West, the owner of the horse in question; that for several years before that time the plaintiff had been a laborer in the employ of one John McAlister, in Canada West, and left the horse upon the premises of said John McAlister, in Canada West, to be sold by said McAlister; that, shortly after this, the said McAlister left Canada West and repaired to the western part of the State of Michigan on business, without having sold or authorized the sale of the horse; that, shortly after McAlister left Canada West for western Michigan, one Samuel Miller, who was in McAlister's employ, and left on his premises in Canada, exchanged the horse in question, without authority, for another horse; that, in four or five days after this, McAlister returned to his place in Canada West, and was informed of the exchange of horses, and declared to Miller that he suspected the horse received in exchange was a stolen horse; a few days after McAlister returned, he bargained the horse received in exchange away to one Patrick Gleason, on the agreement and understanding that, if no one came for the horse as a stolen horse, he was to belong to Gleason; that said horse, so received in exchange for the horse in question, was then delivered to said Gleason; that, within a short time thereafter, one Daniel Rogers, of Van Buren county, Michigan, called on said McAlister and claimed that the horse so as aforesaid received by Miller and transferred by McAlister to Gleason, was stolen, and that he was in pursuit of the horse, and exhibited an advertisement and description of the horse, and threatened to replevy the horse; that said McAlister then informed said Rogers that if the latter could show his authority, he, said McAlister would give up such horse; that Deputy Marshal Moore, of Detroit, was referred to, who informed said McAlister that Rogers was "all right;" that said horse was then obtained from said Gleason and delivered up to said Rogers, and the money received of Gleason for the horse refunded to him by McAlister.

"2d. The defendant resided with his son, LeGrand R. Anderson, in Van Buren county, and an old man by the name of Herrick had lived about five or six years about three miles from defendant's; that a young man, representing himself as the son of Herrick, called on defendant's son with the horse in question, and represented to defendant's son, when defendant was present, that he had bought a piece of land of Eastman or Spencer, of Dowagiac, near the west line of Olean and east line of Wayne townships, and wished to obtain thirty dollars to make the first payment; that defendant's son referred him to defendant, and that defendant let him have thirty dollars upon the agreement that the horse in question should be pledged to defendant for the re-payment of the thirty dollars in five days, and that if the money was not paid in five days the horse should belong to defendant, and that, accordingly, the horse was delivered to defendant, and that said money has not, nor has any part of it been paid.

"3d. That at or before the time of the payment of said thirty dollars by defendant and the delivery of the horse to him, the defendant was not informed nor had any knowledge that there was any question about the title to said horse, but that within two or three days after, the defendant was informed there was a question about the title to said horse, and was informed that Dan. Rogers asserted that the horse had been obtained by young Herrick in exchange for a stolen horse; that, after being so informed, the defendant rode the horse several miles to the premises of one Benjamin A. Murdock, the son-in-law of defendant, and there left him; that Murdock told defendant that the horse was too small for him (defendant) to ride, and that he take his (Murdock's) horse to ride home, and that he (Murdock) would turn the horse in question in his (Murdock's) pasture; that defendant then stated that the horse in question would be a good one for his (Murdock's) girls to ride, and he would leave it, and the defendant then left the horse in question with Murdock; that, when the horse was so left at Murdock's, five days had passed from the time of the delivery by Herrick.

"4th. That said horse was at Murdock's when taken on the writ, and that after he was taken on the writ, and before service on defendant, McAlister demanded the horse as his; that the defendant refused to yield up the horse on the demand unless paid the amount he had advanced, and that McAlister refused to pay so much; that no other demand was made; that the horse was worth seventy-five dollars, and that the value of the use is fifty cents a day.

"The conclusion of law upon these facts I find as follows:

"1st. The acts and sayings of McAlister, and Miller, and Gleason, under the authority given by the plaintiff, passed the title to the horse in question for the money received of Gleason, unless the horse received by Miller was stolen, whereby the horse in question was obtained by fraud, or unless the plaintiff disaffirmed the transaction, on the ground of want of authority in McAlister to transfer the horse in question through the medium of an exchange; and the case wholly fails to show, by any sufficient legal evidence, that the horse received by Miller was stolen; and there is nothing in the case to show that the plaintiff disaffirmed the transaction, on the ground of want of authority of McAlister.

"2d. That, upon the facts, a demand by the plaintiff before action was indispensable.

"3d. That the facts do not establish a case of general ownership or special property of the plaintiff in the horse in question."

Judgment upon this finding having been rendered for defendant, plaintiff sued out a writ of error, and assigned for error specially "that the written finding of facts and law by the Circuit Judge in said cause does not support the said judgment entered in said cause, and that upon the said finding judgment was entered in favor of the said LeGrand Anderson, whereas it ought to have been entered for the said Octave Trudo."

Judgment reversed, and a judgment entered in this court for the plaintiff, for six cents damages and the costs of both courts.

Douglass & Andrews, for plaintiff in error:

The conditional sale, made by McAlister, of the horse received by his servant in exchange for the horse of the plaintiff, seems to have been stated by the Circuit Judge as evidence of a ratification, by the plaintiff, of the exchange of horses, but it is clearly incompetent for that purpose, as it does not appear that McAlister had himself any authority to make or ratify such a contract, and, at most, it is but matter of evidence, which is immaterial in a finding or special verdict: Delafield v. Illinois, 26 Wend. 227.

The exchange made by McAlister's servant, therefore, being neither authorized nor affirmed by the plaintiff, did not pass the title to the plaintiff's horse; and the question arises, whether the plaintiff, whose chattel has been unlawfully taken from him, can, in an action of replevin, recover such chattel from the possession of a bona fide purchaser, without proof that he demanded the property of the purchaser before the commencement of the suit.

No such condition precedent to the bringing of a suit is required by our statute, which provides the remedy by replevin "whenever any goods or chattels shall have been unlawfully taken, or unlawfully detained."--Comp L., § 5005.

That the taking by the defendant, in this case, was unlawful, there can be no doubt. Any unauthorized intermeddling with the goods of another is unlawful, and no court has ever held that honesty of intention, or bona fide payment of value, would relieve such an act from its unlawful character: 2 Greenl. Ev., § 622. And we are unable to perceive upon what principle the plaintiff in this case is called upon to prove, not only that the chattel is his, and that it was unlawfully taken by the defendant, which is all that is required by the statute; but, also, that it was subsequently unlawfully detained. For it is only to show an unlawful retention of a possession, lawfully acquired, that proof of demand and refusal could be relevant at all. In replevin, as in trover, demand and refusal constitute matter of evidence merely, and not a condition precedent: 1 Chit. Pl. (11 Am. Ed.), 147, 160; 2 Greenl. Ev., § 644; 9 Bing. 475; 5 B. & Ald., 847.

And courts have accordingly sustained the action of replevin in cases similar to the present, and without previous demand: 8 Me. 38; 11 Me. 28; 19 Me. 281; 17 Ark. 172; 6 Binn. 2; 1 Hemp. 10.

So trespass, to sustain which there must be, not merely a conversion, or an unlawful detention, but an unlawful taking, will lie in a case like the present: 1 Cush. 536; 5 Mass. 341; 38 Me. 80.

So, a taking of chattels, under circumstances like the present, is held to be unlawful, and of itself, without any subsequent demand, sufficient proof of a conversion for which trover will lie: 3 Bing. 603; 3 C. & P., 99; 4 C. & P., 400; 6 East. 538; 13 N. H., 494; 2 Stark. 306; 11 Cush. 11; 9 Bing. 471; 10 Wend. 390; 2 Dowl. & Ry., 1.

Some decisions in the State of New York are undoubtedly opposed to these views: but they can be sustained on neither principle nor authority. They are based partly upon the exploded doctrine that...