Hickok v. Buck

The opinion of the court was delivered by Kellogg, J.

This was an action of trover for a maré and colt, and it appeared upon the trial, that the defendant, on the eighth of March, 1847, leased to the plaintiff a farm for the term of one year, and agreed to furnish a pair of oxen and a horse to carry on the same. That at the commencement of the term, the defendant put *151 upon the farm the mare in question for the plaintiff to use in carrying on the same, and that it was the only horse furnished by the defendant or used by the plaintiff for that purpose. That in October, 1847, the defendant took the mare away from the plaintiff, without his consent, and against his will, and sold her, without furnishing any other horse for the plaintiff to use; and that the plaintiff objected to the defendant’s taking the mare, and insisted, that he was entitled to the use and possession of her under the lease, and that he needed her.

The defendant now insists, that for the act of taking the mare from the plaintiff the action of trover cannot be maintained, — that by the terms of the lease he was only hound to furnish a horse, and that his neglect so to do would only subject him to an action for breach of the contract. It must be confceded, that had the defendant neglected to put a horse upon the farm agreeably to his stipulation in the lease, the plaintiff could only have obtained redress for such neglect by an action for breach of the contract. But the defendant having placed the mare upon the farm in pursuance of the agreement, the plaintiff, having accepted her for the purpose therein specified, became bailee of the mare, coupled with an interest and a right to retain her during the term of the demise. The plaintiff had done nothing to forfeit this right, and the defendant could not, upon his own mere volition, put an end to the bailment. An invasion of this right of the plaintiff, by taking the mare against his will and before the expiration of the bailment, was a tortious act, for which the action of trover may well be sustained. The general property in the mare remained in the defendant, but by the bailment the plaintiff acquired a special property in her, and was entitled to the exclusive use and control of her, during the continuance of the lease. And the defendant’s interference in the matter, by taking the mare against the will of the plaintiff, is to be regarded the same, as though done by one who had no interest in her.

This disposes of the only question raised, and as we find no error in the proceedings of the court below, the judgment of the county court is affirmed.