Babcock v. Gill

Headnote

A. delivered a quantity of black salts to B. to be manufactured into pearl ashes, for A. and after the ashes v/ere made and put into barrels, they were rolled out into the highway, by B., as belonging to the plaintiff. And B afterwards, before they were removed, sold them to C, who, before the purchase was concluded, wasitrformed by A, of his claim to the ashes. In an action oftrover brought by A. against 0.9 who had taken and converted the ashes to his own use, it was held, that the property in the ashes remained in A , that B. was the servant or agent of A. in manufacturing them; and that the sale by B, to C. was ¡x wrongful conversion of the property of A.

THIS was an action of trover, for 11 barrels of pearl ashes. The cause was tried at the Chenango circuit, the 18th of September, 1812, before Mr. Justice Van Ness, when a verdict was taken for the plaintiff, for 120 dollars and 65 cents, subject to the opinion of the court on the following case:

In March, i^b, a contract was made between the plaintiff and one S'. Howard, by which the plaintiff agreed to furnish Howard with a quantity of black salts, which Howard was to work into pearl ushes, at the works of one Whitney, which Howard had hired for that purpose. The pearl ashes so to be made by Howard, from the salts so furnished and provided by the plaintiff were to be carried by the plaintiff to market and sold, and after deducting the expenses of the black salts, transportation to market, storage and other charges, the net proceeds were to be carried by the plaintiff to the credit of Howard who was at that time indebted to the plaintiff for more than 150 dollars.

The plaintiff provided, at different times, a large quantity of black salts, which he delivered at the place appointed, for Howard to manufacture into ashes. Howard also brought to the same place some black salts to manufacture for himself. The salts of the plaintiff were kept separate and distinct from the other, except once, when a part became accidentally mixed. Howard worked up a quantity of nitre belonging to him with the salts of the plaintiff. After the pearl ashes were made, he sold as much of them as he supposed would reimburse himself for the nitre so used in making the plaintiff’s ashes. As the ashes were made, he put them, from time to time, in barrels, and rolled them out of the manufactory into the common highway, to the number of about thirty-five barrels, exclusive of those so sold by him. The casks were chiefly furnished by the plaintiff and a few by Howard. The ashes so rolled into the highway v/ere covered and kept separate from the rest. When the barrels of ashes were rolled into the highway, Howard said they were the plaintiff’s; and the plaintiff was present, at different times, when they were so rolled away, and Howard conversed with him about them, as if they belonged to the plaintiff. Howard told him he might take them away at any time. The plaintiff accordingly, at different,

times, took away the ashes, except eleven barrels, being the property in question, which, about the 1st of July, 1811, remained In the place where they were so put by Howard. At this time, a dispute arose between the plaintiff- and Howard, who afterwards# on the same day, sold the ashes in question to E. Whitney, in payment of a debt. On the 11th of July, while the ashes remained in the place where they were so put by Howard, Whitney sold the ashes to the defendants, in payment of a debt due from him to them, and they were to allow to Whitney the net proceeds; and the defendants afterwards sold 4ÉP converted the ashes to their own use. It was proved that while Whitney and one of the defendants were bargaining about the ashes in question, and before they were actually sold, the plaintiff interposed, and-informed one of the defendants of his claim to the ashes,

It appeared that in manufacturing black salts into, pearl ashes, the substance or chymical properties of the alkali were not materially changed.

The cause was submitted to the court without argument.