Swift v. Moseley

If the general owner of chattels part with the possession for a definite term, he cannot sustain trespass or trover for an injury done to the thing, during the continuance of the term. But if the bailee apply the thing to a different use from that for which it was bailed, his interest is determined, and the bailor may sustain trover for the injury, against all concerned in the transaction. E. g. if the hirer of a chattel for a year, sell it during the year to one knowing his interest, the owner of the chattel may sustain trover against the purchaser.

Trover, for two oxen, three cows and nine sheep.- Plea — Not guilty. On the trial of the cause in the county court, it appeared in evidence, that, in the spring of 1835, the plaintiff leased a farm, lying in Bridport, (of which he was possessed in right" of his wife,) together with the above mentioned cattle and sheep, to one Jirah Swift, for the term of one year. By the terms of said lease, the plaintiff and said Jirah Swift, were, at the end of the year, to divide the profits of the farm and the increase of the stock, equally between them, which stock was to remain upon the farm during the year, unless sold or taken off by the consent of the plaintiff and said Jirah Swift; — that some time in the month of August, 1835, the said Jirah Swift sold said cattle and sheep to the defendants, without the consent of the plaintiff, and absconded, and that the defendants, immediately after making the purchase, drove the cattle and sheep away from the farm. The plaintiff introduced testimony tending to prove, that the defendants knew that Jirah Swift had no right to dispose of the cattle and sheep, and that they purchased them much under their value. Upon this evidence, the county court decided, that this action could not be sustained, as the plaintiff brought the suit previous to the termination of said lease, by the terms of which he had parted with his right of possession of the property in question, during its continuance, and rendered a judgment for the defendants, to which decision the plaintiff excepted. 1. It is a familiar and well settled principle, that the general owner of chattels, bailed for a particular purpose, may maintain trover against the person who has transferred them. not in market overt, in contravention of such purpose. Wilkinson v. King, 2 Camp. 335. 2 Starkie, 311, 2, The lease, by which the right of possession of the chattels in question was yested in Jirah Swift, during the term, was determined by his absconding and thus abandoning the lease. A lessee of premises, by surrendering his term before the .expiration of it, or by giving notice to his lessor that he is about to leave and abandon the possession of the premises, may determine the lease with the lessor’s consent. Collins fy Harvey v. Gibson and Sargeani, 5 Vt. R. 243. 3. The sale of the property, by Jirah Swift to the defendants, was in violation of his contract with the plaintiff, and .determined his special property. Farrant v. Thompson, 5 B. & A, 826. The s.ale was in fraud of the plaintiff’s rights, and the case shows that the defendants had knowledge of what those rights were. Consequently, in making the purchase, they aided in the fraud, and acquired no title to the property in question. And this view of the case is sustained by the case of Bigelow v. Huntl,ey, 8 Vt. R. 151. It is indispensable in this action that the possession or the right of possession should be in the plaintiff, at the time of .commencing the suit. Gordon v. Harper, 7 T. R. 12. .Soper v. Sumner et al. 5 Vt. R. 274.