Coller v. Shepard

By the Court,

The evidence upon the question whether there was an agreement between the plaintiff and Mitchell that the latter should go after and bring the goods, *308in pursuance of which he obtained and brought them, was conflicting, but it is manifest from the judgment of the justice, he was satisfied the preponderance of evidence' on that point was against the plaintiff; and his decision on that subject cannot be reviewed; it is final.

It was proved before the justice, that Mitchell, upon his return with the goods from Canandaigua, took them to and offered to deliver them to the plaintiff, and that the plaintiff refused to receive them, saying he had nothing to do with Mitchell, and that he had sent another man for the goods. Mitchell then placed the goods in the care of the defendant, as a mere depositary of his, instructing the defendant to deliver them to the plaintiff on being paid $7 charges; being $4 for the charges of the express company, and $3 which Mitchell was, by the agreement, to be paid for bringing the goods. It is not expressly stated in the justice’s return, that Mitchell paid the express charges, but as no question appears to have been made on that subject, I think the justice might properly conclude that Mitchell did pay them ; and that it must be intended, if necessary, to support his judgment, that the justice came to that conclusion. The points of the counsel on both sides, submitted to us, assume that Mitchell advanced the express charges.

The only evidence of a conversion of the goods by the defendant is, that when they were demanded of him by the plaintiff, he said there was a matter between the plaintiff and Mitchell which must be settled before the plaintiff could have the goods, not specifying what the matter was.. It is insisted by the plaintiff’s counsel that he referred to the $7, and that at the least there was no lien for the price to be paid Mitchell for bringing the goods, there being no agreement to that effect, and he not being in the business of a carrier, and that therefore the defendant was guilty of a conversion, by refusing to deliver unless that sum, in addition to the amount of the express charges, was paid. I think Mitchell had a lien on the goods to the extent of his advance for express charges; that he took the place of the company in respect to their lien; and that the defendant púght retain them for him until' the sum advanced was repaid *309or tendered, or a tender was dispensed with in some way by the defendant. It is not pretended that payment or a tender was made, and I think the evidence does not warrant the position that a tender was dispensed with. There was-no plain and explicit refusal by the defendant to deliver unless more than the amount of the advance was paid. The language used by him admits of a construction entirely short of such a refusal, and perfectly consistent with his legal rights. It may fairly be limited in interpretation to Mitchell’s legal lien. And it was the right, if not the duty, of the justice, in the circumstances of the case, to give it a construction favorable to the defendant. The evidence to dispense with proof of a tender, when such proof would otherwise be necessary in making out a conversion, should be free from serious doubt. But it is sufficient in this case in regard to this subject, to say that here was a fair question of fact for the justice, and that, making all proper intendments in support of his judgment, it must be intended he regarded the evidence on that point insufficient. The court cannot disturb this conclusion of the justice.

Johnson, Welles and T. R. Strong, Justices.]

There is ground to infer that the defendant would have refused to deliver unless the whole of the $7 was paid, but it was not proved that he did so, and without such proof, a tender of the amount of the lien was wanting, in order to a conversion.

According to the foregoing views the judgment of the justice was correct.. Upon what ground the county court reversed it, does not appear. I think the judgment of the county court should be reversed.