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Dyer v. Vandenbergh

11 Johns. 149 Court N.Y. Sup. Ct. English

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p. 149
Dyer against Vandenbergh.
NEW-YORK,
May, 1814.

Headnote

v- “ntI D- achange horses, had been mm ‘“a11^ de¡^®nr" dissatisfiedwith immediately”’ Xe^and i? jj^ewise^ took sued v. before, Covered tin terwards bro’fc an action of trover against D.forthehorse so exchanged by him»andón the trial it appeared that the horse which V had offered to exchange with D. belong» ed to C. who-had intrusted him to V« to sell; it washeld, that admitting there was a vald exol,ai,ge of horses, in this case, which UonaWef qUyet had not pro-to maintain the property in the R°rpL°e<]D'byf exchange, vested m C., and not in V» hls agent*
IN ERROR, on certiorari, from a justice’s court. Tundenbergh brought an action of trover against Dyer, in the court below. Plea, the general issue. It appeared from the evidence stated in the return, that the parties met on the road, and some conversation took place between them about the exchange of horses. V. agreed to let D. have his horse for the mare in ques-lion, the exchange to be even, and no questions to be asked. D. said his mare was five years old. After the horses were mutually ielivered, V. said the mare was more than five years old, and he vould not exchange, and immediately took back the horse, and :he defendant again took the mare in question, declaring at the ame time he would sue V. And he afterwards brought an ación against V. before a justice, and recovered ten dollars, the ninutes of which trial were admitted by consent.
It appeared that the horse which V. had attempted to exchange with D. for the mare, was not the property of V. but lad been intrusted to him by Freeman and Crane, the owners >f the horse, for sale. The jury found a verdict fór the plainiff for 15 dollars, on which the justice gave judgment.

It is very questionable whether what took >lace between the parties amounted to a valid exchange of , . , 1 . , , torses, so as to pass the property. Admitting, however, there ras a valid exchange, the plaintiff below had no right of action. Ie showed no property in himself, sufficient to maintain trover; or he acted in the capacity of an agent for Freeman and Crane, Che horse he let the defendant have was their property, and the iroperty in the mare vested in them, if it passed from the deéndant by that exchange,[1] Besides, the merits of the J , . hange appear to have been the subject of the former trial be-ween the parties, and ought not, therefore, to be again drawn

(a) (a) Though a mere servant has not such a special property as will enable him to laintain trover, yet a bailee or trustee, or any other person who is responsible to is principal, may maintain the action; and the lawful possession of the goods is, rima facie, evidence of property. 3 Saund. 47. b. c. d. 1 East, 244, 4 East, 214. Salk, 290. Cro, Elix. 819.

p. 150
into question. Whether that judgment was properly obtained or no(;} cannof; £,e the subject of inquiry in this case. The judgment below must be reversed.

Judgment of reversal,