Watson v. Stever

• Decision Date: 13 July 1872
• Citation: 25 Mich. 386
• Court: Michigan Supreme Court
• Parties: James Watson v. Charles B. Stever

25 Mich. 386

James Watson v. Charles B. Stever

Supreme Court of Michigan

July 13, 1872

Heard July 8, 1872

Error to Saginaw Circuit.

Judgment reversed with costs, and a new trial ordered.

Mc Donell & Cobb, for plaintiff in error.

William A Clark, for defendant in error.

Cooley J. Campbell and Graves, JJ., concurred. Christiancy, Ch. J. did not sit in this case.

OPINION

Cooley J.

Stever, as assignee of one Sheldon, sued Watson in assumpsit to recover the value of logs which Watson had taken possession of, claiming to have bought of third persons. There is no dispute that if the logs belonged to Sheldon, Watson was liable for their value in trespass or trover; but there had never been any promise on his part to pay Sheldon for them, and on the contrary, he had always denied his right. If there was any exception to this statement, it was on one occasion when Sheldon's agent demanded certain logs, and Watson said, if the agent could identify any in his possession as belonging to Sheldon, he would pay for them. One was identified and paid for, and the agent said more of them belonged to Sheldon, but as he could not identify them, Watson refused to recognize any further right. It was not shown that Watson had sold any of the logs. The circuit judge charged the jury, that if they found Sheldon owned the logs, and they were used by Watson without Sheldon's consent, Watson was liable for the value, in this form of action. And he refused to charge, as requested by defendant, that if Watson took and retained the property under a bona fide claim of title in himself, the plaintiff could not recover in this action.

There are not wanting decisions which support the rulings of the circuit judge; but the great weight of authority, as well as the tendency of recent decisions, is the other way. If one has taken possession of property, and sold or disposed of it and received money or money's worth therefor, the owner is not compellable to treat him as a wrong-doer, but may affirm the sale as made on his behalf, and demand in this form of action the benefit of the transaction. But we can not safely say the law will go very much further than this in implying a promise, where the circumstances repel all implication of a promise in fact. Damages for a trespass are not in general recoverable in assumpsit; and in the case of the taking of personal property, it is generally held essential that a sale by the defendant should be shown: Jones v. Hoar, 5 Pick. 285; Glass Co. v. Wolcott, 2 Allen 227; Stearns v. Dillingham, 22 Vt. 624, Mann v. Locke, 11 N.H. 246; Smith v. Smith, 43 N.H. 536; Willet v. Willet, 3 Watts 277; Pearsoll v. Chapin, 44 Pa. 9; Guthrie v. Wickliffe, 8 Ky. 83, 1 A. K. Marsh., 83; Fuller v. Duren, 36 Ala. 73; Sanders v. Hamilton, 33 Ky. 550, 3 Dana 550; Barlow v. Stalworth, 27 Geo. 517; Pike v. Bright, 29 Ala. 332; Tucker v. Jewett, 32 Conn. 563; Emerson v. McNamara, 41...