Brown v. Bement & Strong

Headnote

Where A. gave aaie^of- *three the^conskiera3ars;0aifd°A<at the same time gave to A. a writing or defeasanee, engaging, on the payment lars, to him by to deliver**‘the was^heid^that ^e'ofthe™0^' perty, and not a technicalpledge, and that A, not tendereúthe 3*1 o theu’days^the canm^forfeUed, and the gagee had an absolute interest in the propei lyyso that v2o on a derSofUibe mo-demand "of the fusa^'coidd^not í'or'i"lain irover

' THIS was an action of trover, for three horses and a chair. The cause was tried at the Columbia circuit, in September, 1810, before Mr. Justice Thompson.

The plaintiff proved, that he was possessed of the fi0rses an¿ chair, and that, afterwards, on the 26th April, 77 1 7 1810, he tendered the sum of 283 dollars and 5 cents to Bement, one of the defendants, and demanded the horses and chair, who refused to deliver them, and referred the plaintiff to Strong, the other defendant. The plaintiff, on the next day, made a tender of the same sum to Strong, anc* demanded the property, but Strong refused, saying the horses and chair were in possession of Bement.

The defendants then produced in evidence an absolute bill of sale of the horses and chair to the defendants, under the hand and seal of the plaintiff, dated 27th Octo^ert 1809, for the consideration of 210 dollars and 35 And the plaintiff gave in evidence a writing 1 ° 0 bearing the same date, executed by the defendants, by 0 which they stipulated, on the payment oi 210 dollars and 35 cents to them, by the plaintiff, in 14 days from the date, to deliver to the plaintiff the horses and chair; but T the property was lost in the mean time, they were not to be responsible ; nor for any expenses attending the property during that time.

It,was proved, that before the commencement of the “ , . suit, Bement had told the plaintiff he was willing to return the property which remained, but that one of the horses had been sold. The plaintiff answered, that if they could agree as to the price of the horse sold, that Xvould create no difficulty.

A verdict was found for the plaintiff, by consent, subject to the opinion of the court; and it was agreed that if the plaintiff was entitled to recover the whole property, the verdict should be entered for 438 dollars ; but if for the one horse only which had been sold, then the verdict Was to tie for 85 dollars ; and if the court should be of opinion that the plaintiff was not entitled to recover at all, then a judgment of nonsuit was to be entered.

Three points were raised for the consideration of the court. 1. That the writing given by the defendants to the plaintiff made the property a pledge, redeemable at any time.

2. That on tender of the money, the plaintiff’s right of action was complete.

3. That the plaintiff was entitled, at least, to recover the value of the horse sold.