Norton v. Squire — 16 Johns. 225

Majority

p. 225

Norton against Squire,

Headnote

Where a carnage was put into the hands ant to pay-hím^aníTthe fhlTdffehdant 07theTarria°e ™ore tha“ a year, and uscd it ay his own, and never sold it, it the defendant reasonable1 a thichhe^nght auctiondint C0“Id noi be aotd at pnvate sale, might be self as the purwST’tWgeable With the amount of the it!™1 “aiJe to jyj¡tboth <b<?

IN ERROR, on certiorari to a Justice’s Court. 1

. The defendant m error brought an action m the Court below, against the plaintin in error, to recover a sum of money due to the former, from the latter, on account of a carriage, which had been delivered to the parties in this suit by one Gerry, as payment or security for debts which he owed them. The carriage had been in the possession ° r the defendant below, for a year or more, and he had promised , , . , , . , . , ... , . the plaintiff below to pay him his demand, being 15 or 16 dollars, with some cents, as soon as he could sell it. The defendant used the carriage several times, and while it ivas in his possession, had had it repaired, the plaintiff having refused to bear part of the expense of repairs, and to use the carriage in common with the defendant. It ivas proved, ° * 7 that the defendant had twice offered to sell the carriage. The Justice gave judgment for the plaintiff below, the defendant in error, for 16 dollars, with costs.

The carriage was put into the hands of the defendant below, to pay debts due to him and the plaintiff below, and the only question is, whether the defendant is not, upon this testimony, to be considered as having elected to become the purchaser, and so liable to pay the demand due to the plaintiff. He had the possession bf the carriage upwards of a year, during which time he had it repaired on his own account, and used it during that period as his own, the plaintiff below having refused to concur in repairing it. It is true, that he twice offered to sell it, but such offers may have been collusive. He ought to have sold it at auction, if he could not have disposed of it by private sale. If he could keep the possession of the carriage, for a year, he might for two years, and the plaintiff below might never get his money. The defendant below bad a reasonable time to sell it, and not having done so, after being In possession upwards of a year, the Justice did right to

p. 226

consider him as the purchaser himself, and there is no complaint but that it was of sufficient value to pay both debts.

Judgment affirmed.