Mullins v. Chickering

The defendants were bailees of the plaintiff. She placed the piano in their possession, to keep for her and return upon her demand. They were not at liberty to dispute her title except in one emergency and at one peril. The executors of the husband claimed title to the property as having belonged to the testator, and demanded it of the defendants. They chose to submit to the demand and delivered the piano to the executors. By so doing they made themselves parties to the controversy, and when called on to return the property to the plaintiff their refusal exposed them to an action for ■conversion, which has gone against them. They had, however, the right to set up as a defense thejus tertii, and defend, if they could, upon the title of the testator which had passed to the executors, since before this action was tried they had submitted to that title, and delivered the property to those who -claimed to be owners ( W. Trans. Coy. Barber, 56 FT. T. 544), .and had been permitted to raise that question by a supplemental answer. They had taken upon themselves the risk of that title, but could defend upon it and justify under it. 'They chose to hold under the testator and to derive their title .and interest and all their right to the property or its possession .from and under the deceased, and had a right to defend their surrender upon that title.

They came, consequently, within the description of section 829 of the Code of Civil Procedure as “ a person deriving his title or interest from, through or under a deceased person '* * * by assignment or otherwise.” Against them, therefore, the plaintiff could not testify in her own behalf to any personal transactions between herself and her husband. She did so testify. The proof showed that he bought and paid for the piano with his own money. That established title in him. She met the emergency by swearing that he, the owner,

Bor this error the judgment should be reversed and a new trial granted, costs to abide event.

(dissenting). The action was begun July 3, 1883, for conversion by defendants of the plaintiff’s piano. The original answer was a general denial. On the 27th of April, 1885, by supplemental answer the defendants say the piano was left with them by the plaintiff for storage, but was afterwards demanded by the executors of John Mullins, her deceased husband, as part of his estate, and delivered to them by the defendants; and that after the commencement of the action the plaintiff, with knowledge of this fact, and that the said executors claimed the said piano as against any right or title of the plaintiff thereto, for a valuable consideration executed to the executors a full release and satisfaction of all claims and demands which the plaintiff then had against the said estate or the executors thereof, “ and received full payment and satisfaction therefor, including the said piano, now the subject of this action,” To which said release the defendants refer as forming part of their answer and defense.

It seems obvious that the defenses are: First. A general denial; and, second, a release by plaintiff to the executors and payment and satisfaction by them for the piano. There is no defense on the ground that the executors were, in fact, entitled

The evidence in this case leaves no doubt that the piano was in the actual possession of the plaintiff on the 27th of December, 1881; that on that day she delivered it to the defendants for storage, and they received it from her for that purpose. The transaction was with defendants’ manager at their warehouse. She sent the piano by their cart to that place, and said to him: “ There is my piano; I wish you would keep it on storage for me, and he said ‘ very well.’ ” The price for storage was agreed upon and the piano left with the defendants, who received it from the plaintiff to store for her, and it was so entered on their hooks. <

In September, 1882, the plaintiff went for the piano and. demanded it and was refused. At that moment she had a good cause of action, which would not have been discharged, even by a, subsequent return of the property to her, much •less by its delivery to a third person. But the supplemental answer, so far from showing a defense, in fact, shows that the plaintiff was in position to maintain the action by simple proof of the possession by her of the piano. Her cause of action accrued in September, 1882, and the only pretense of its release or discharge is founded upon the idea that the executors

A point is made by the appellants that the court erred in allowing the plaintiff -to testify that “ her husband gave her the piano; bought it for her.” Under the view already presented, the source of the defendants’ possession was immaterial. The plaintiff’s case was made out by her possession of the piano and the contract of bailment between herself and the defendants and its breach by others. But being examined as to value, objections were interposed to her competency to speak upon that subject. She then stated that she was a musician, in the habit of using pianos, and being asked: “And of buying them or having them bought for you by your husband ?” No objection was made to this question, and she answered, “Yes, sir;” and showed other means of knowledge. She testified to the value. She was then asked: “ Where did you get the piano you delivered to the Chickerings % ” Defendants’ Counsel—“ I desire to reserve any objection which may be made to her answer.” There was no reply to or notice taken of this observation, nor was the question answered. She was then asked: “ Did you buy it, or who gave it to you ? ” The question was not objected to and the witness said: “ It was bought by my husband for me from Chickering.” Defendants’ counsel then said: “ Objected to,” but no ground was stated, nor does it appear that there was any ruling upon the objection, or, if any, that any exception was taken. Then followed this question: “Your husband gave it to you ? ” Answer: “Yes; bought it for me.” Then follows: “ Objection by defendant as incompetent, under section 829 of the Code, and as incompetent and immaterial, and further as being a conclusion of the gift from her husband. Objection overruled, defendants except.”

(2.) But the evidence, in view of the pleadings, was wholly immaterial, and in no respect necessary to a perfect cause of action, which, upon other evidence, was established upon a good foundation. It might be stricken, out without affecting the result. It, therefore, could not have prejudiced the defendant., (Comstock v. Hier, 73 N. Y. 281 .)

(3.) The section of the Code cited has no application. The action was not against the executors, nor did the defendant derive any “ title or interest from, through or under a deceased person by assignment or otherwise.” The cause of action was complete in September, 1882. The demand of the executors was in 1883, and not until then, if ever, could the defendants, under any circumstances, be considered as standing in their place. But it is a decisive answer to the objection that the defendants set up no title in the executors, nor in the estate with the management of which they were charged.

I find nothing in the case to take the defendants out from the general rule that a bailee cannot deny the right of the person from whom he receives the property. They became, by that act, the agents of the bailor, and could not dispute her title. This rule applies to all cases where the bailor has not yielded to the paramount title in another, so that the bailment is determined by what is equivalent to an eviction by the real owner, ft is not enough that the bailee has been notified of the claim of a third person, for possibly, as it is said, “ the owner might never pursue his claim or enforce his title.” ( Case v. Hall, 24 Wend. 102 ; O'Brien v. Jones, 91 N. Y. 193 .) Mor is it enough that an adverse claim is made upon the bailee, so that he might be entitled to relief under an inter-pleader. Of course, if, in answer to the demand made by the plaintiff, the defendant had called upon the adverse claimants

The judgment should be affirmed.

All concur with Finch, J., except Daneobth and Gbay, JJ., dissenting, and Rugeb, Oh. J., not voting.

Judgment reversed.