Jackson v. Walton

The o|)inion of the court was delivered, at the circuit session in September, 1856, by Bennett, J.

This case comes up on exceptions to the decision of the county court rendering the trustee chargeable. It seems the case must /turn upon the question, to whom did Mr. Walton owe this debt ? If not to Mr. Abbott, he should not be adjudged chargeable. It is found in the case, that some time in the year 1852, Mr. Walton spoke to Mr. Abbott for the stone, and that he was answered by Mr. Abbott that he, Abbott, could probably furnish them; and it is expressly found by the commissioners that Abbott did deliver the stone oto Mr. Walton on the third day of August, 1853, and that he received them and used them for the purposes for which they were designed. These facts are abundant, to show an indebtedness from Walton to Abbott, unless there is enough in the case to control them. It is claimed, however, that this debt belonged to Drury, and not to Abbott. It becomes important to see what the facts are bearing upon this point. It is true, the trustee discloses that one Moses Peck told him he had some stone for a walk to deliver him, as the property of Mr. Drury, who, he said, had employed him to bring them; and that he should only deliver them as the property of Mr. Drury; and the trustee says he told him he might so deliver them, and he did so. But still it is found that Abbott really delivered the stone, and that he in fact requested Peck to deliver the stone to the trustee as the property of Drury, which was done; and that ■ Drury knew nothing of Abbott’s contract with the trustee, and nothing about these stone until the present suit was commenced. There is nothing in the case to show that Drury had any interest in the stone, or that Abbott could be regarded in any sense, as acting as the agent of Drury; but the case shows the reverse, and that Abbott quarried out these stone for and on his own account.

*47 Upon such a state of facts, no debt can be claimed, as being due from the trustee to Drury. Drury was but a man of straw; and though Abbott 'caused Peck to act ostensibly in his name, yet it was without any authority, and without any interest in Drury ; and what was done was in truth done by Abbott, as the commissioners have found. The disclosure of the trustee simply affirms, that Peck assumed to act for Drury in the delivery of the stone; and that the trustee consented that the stone should be delivered and received as the property of Drury. This would not necessarily make them so, as matter of fact.

It is further objected by the trustee, that he should not be chargeable as the trustee of Abbott, upon the ground that Abbott-quarried these stone from a quarry belonging to one E. S. Camp, without any right, and was a trespasser in so doing; and that consequently, it is said, the trustee is liable to Camp for the value of the stone, and should not be held liable to the principal debtor. But suppose it be conceded that Abbott trespassed upon the rights of Camp in quarrying the stone, and might have been sued in tort by Camp for the injury done him, does it follow that Camp can sue the trustee in assumpsit, or tort and recover the value of the stone ? These stone were purchased by Mr. Walton for a walk from his front door to the street, and were used for this purpose; and when these stone had been laid down in the manner detailed in the bill of exceptions, they became a part of the trustee’s realty, as much so as if they had been stone for a wall, and had been, not only purchased for that use, but had been actually laid into stone wall upon his farm. Though it may be true that, whatever alteration there may be in the form of property, if the owner can prove the identity of the original materials, he may still seize it in its new shape, yet this right only exists so long as the identity of the original materials can be established. This principle, however, does not I apply to cases where the property, illegally taken, has lost its identity, or has been annexed to the freehold. It then becomes a part of the realty, and its nature is changed. 6 Bacon, Trespass, p 580. See, also, 7 Cowen 95; 6 Hill 425 .

Though it might be true, that in an action of trespass against Abbott, the measure of damages might be the value of the stone at the time of the asportation, and in an action of trover, the value *48 at the time of the conversion, as evidenced by a demand and refusal, even although the value had been increased by the previous tortious acts on the part of the defendant, which might have subjected him to an action; yet it does not neeessarily-follow, that the same rule of damages would obtain hr a suit against Abbott’s vendee. It is to be presumed that Walton bought the stone in good faith, and was not guilty of any intentional wrong upon the rights of Camp, and when the trustee had annexed these stone to his freehold, the title to them would not attach in Camp, but they would belong to the trustee, when .they became a part of his realty. The right of property was thereby changed, and, however it might be in a suit against Abbott and upon which we have no occasion to express any opinion, we think Walton could not be held liable to Camp for the increased value of the stone produced by their being quarried, wrought and delivered to the trustee by Abbott.

The amount of hewed stone delivered was 114 feet, and the value Qf these stone in the quarry, is found to be one cent per foot. If it was to be conceded that, in an action by Abbott against Walton for the value of the stone, Walton would have the right to retain to the amount of the value of the stone in the quarry, upon the ground of his liability to Camp yet this cannot lead to the reversal of the'judgment of the county court. The commissioners decided from the disclosure and facts found by them, that Walton was indebted to Abbott in the sum of sixty dollars, and was his trustee in that sum. It is no where found that this sum was the precise value of the stone as delivered; and, for ought which appears from the commissioner’s report, they may have deducted the value of the stone while in the quarry, from what would otherwise be the amount of Walton’s indebtedness. It is consistent with the report that they should have done it; and we are not to presume they did not, for the sake of reversing the judgment of the county court. The case of Martin v. Porter 5 M. & W. 351, and Wingate v. Smith 20 Maine 287 , to which we have been referred by the defendant’s counsel, are not cases where a change in the title to the property had been effected.

Judgment of the county court is affirmed against the trustee with costs, and is, pro forma, affirmed against the principal debtor without costs.