Thomas v. Coe — 21 N.Y. St. Rep. 632

Majority

p. 632

John H. Thomas, Resp’t, v. J. Frank Coe, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 7, 1889.)

Headnote

1. Conversion—When eight of action tests in bailee.

The plaintiff sold to one Tough certain goods, the title to the same to remain in plaintiff until _ they were paid for. Subsequently and before the commencement of this action the defendant brought replevin against Tough, and among other goods were those sold by plaintiff to Tough. He pleaded ownership and obtained a verdict for the value of the goods. Held, that Tough as a bailee had a special property in the goods, and could maintain an action for their wrongful conversion, and in such action he would recover their full value.

3. Same—When recovery barred.

A recovery for the conversion of goods by either a general or special owner is a bar to an action by the other.

Appeal from a judgment entered on a verdict for the’ plaintiff rendered at Columbia circuit, April 12, 1888, and from an order denying a motion for new trial made on the-minutes.

In January, 1884, the plaintiff entered into a written contract with one Tough, by which plaintiff agreed to deliver to Tough certain rakes and tedders, to be delivered on the cars at Springfield, Ohio, for which' Tough was to give his notes whenever requested, the final and entire settlement to be made by September 1, 1884.' Until payment, the title to-the goods was to remain in plaintiff, but Tough was to be liable to pay. In October, 1884, Tough gave plaintiff a check and notes in full for the contract price.

In February, 1885, prior to the commencement of this action, the defendants brought replevin against Tough and took certain goods, among which were the rakes and tedders for the value of which this action is brought. They were taken and delivered to Coe. Tough pleaded ownership, and demanded judgment for return of the goods or their value. On the trial a verdict was rendered for Tough for $1,729.10, the value of the goods, and judgment thereon was entered accordingly January 30, 1886. This fact was set up as a bar in the present action in a supplemental answer.

Henry D. Hotchkiss, for app’lt; J. C. Newkirk, for resp’t.

If the plaintiff’s position is correct, that he continued to be the owner of the goods, then Tough was a bailee and had a special property therein. As such he could maintain an action against a person who had wrongfully converted them. In such action he would recover the full value. Marsden v. Cornell, 62 N. Y., 215 .

The judgment in the action of replevin was practically a judgment for conversion. Tough was decided to be owner, and Coe to have wrongfully taken the property. For such wrongful taking Tough recovered against Coe the full value of the goods.

p. 633

The defendant now insists that such recovery is a bar to the recovery in the present action. The plaintiff, on the contrary, says that only judgment and satisfaction are such bar.

The opinion in the case above cited is unequivocal. “Either of them (meaning the general and the special owner) could maintain an action for the conversion of the chattel; whichever of them first recovered would recover the full value of it; a recovery by either barred a recovery by the other.” Again: “If the special property man sues first and recovers, a recovery by him is a bar to an action by the general owner.”

Now, it is quite possible that in that case there had been not only recovery, but satisfaction. But it will be seen that the court distinguishes between the payment of the judgment which gives title to the property and the recovery of the judgment which bars another recovery.

This same doctrine is laid down in Neff v. Thompson, 8 Barb., 213 , and in Wheeler v. Lawson, 103 N. Y., 40 , at page 47; 2 N. Y. State Rep., 791.

So it was held in Green v. Clarke ( 12 N. Y., 343 ), that if the general owner brought an action for conversion, and there was a judgment against him on the merits, this was a bar to an action by the bailee.

It seems to us that these decisions have settled the question, and, as we are convinced that the recovery by Tough in the replevin action was practically a recovery for the conversion of the goods, we must hold that that judgment was a bar to this action.

This view makes it unnecessary to consider the other question presented.

Judgment reversed, new trial granted, costs to abide event.

Landon and Ingalls, JJ., concur.