CASES

IN THE

COURT OF APPEALS

OF

MARYLAND.

HARKER V. DEMENT.

[9 GILL, 7.]

DEFENDANT IN TROVER CAN NOT SHOW TITLE IN THIRD PERSON with whom he has no privity, either to defeat the action or in mitigation of damages.

MEASURE OF DAMAGES IN TRESPASS OR TROVER by termor against his reversioner is the actual loss sustained by the termor.

MEASURE OF DAMAGES IN TRESPASS DE BONIS ASPORTATIS, or trover by termor against stranger, is the full value of the property.

TENANT IN COMMON MAY RECOVER IN TROVER AGAINST STRANGER his aliquot share in chattel unless a plea in abatement is interposed; and after his recovery his co-tenant may recover likewise from the same defendant, and no plea in abatement can be interposed.

AGENT'S AUTHORITY CAN NOT BE ESTABLISHED BY HIS OWN DECLARATIONS. TORTIOUS CONVERSION CONSISTS IN WRONGFUL ASPORTATION OF CHATTEL with intent to appropriate it to taker's use, and no demand and refusal are then necessary to maintain action.

MOTIVE INFLUEncing Defendant IN TORTIOUS CONVERSION is material only in repelling recovery of exemplary damages.

PAROL EVIDENCE OF ORAL PROCEEDINGS IN ANOTHER ACTION are not admissible without first producing record evidence of the existence of such action.

TROVER to recover the value of two slaves. The verdict wus for the plaintiff, and a motion for a new trial being denied, the defendant appealed, relying on three exceptions, the first two of which are sufficiently stated by the court. The third exception was to the exclusion of the testimony of one Brent, who was introduced to testify that he was present at the trial of an action brought by Briscoe against Dement, the plaintiff and appellee, when Dement's counsel set up orally, as a set-off to plaintiff's

demand, the sale by Briscoe of the negroes involved in the present controversy; and that this set-off was submitted to the jury in the argument of counsel of the respective parties. The court refused to admit this evidence unless it was preceded by the introduction of record evidence of the existence of said suit. Richardson, attorney general, for the appellants.

R. J. Brent and Horsey, for the appellee.

By Court, MARTIN, J. This was an action of trover. At the trial of the cause below, the plaintiff proved by a competent witness, that the slaves in controversy were upon his farm and in his possession, under the management of the witness, as his overseer, on the thirteenth of March, 1846, and that on that day, John Campbell, one of the defendants, came to the farm, in company with one Briscoe and a Mr. Stuart, the sheriff of Charles county, and that Campbell, after bargaining with Briscoe for the sale of these slaves, took forcible possession of them and carried them away.

In this condition of the case, the defendants, on cross-examination, asked the witness whether these slaves were not the property of Richard Dement's estate, and avowed their purpose to be to give such evidence to defeat the plaintiff's claim, or to offer the same in mitigation of damages. This evidence was objected to. The court, we find, refused to admit it, for either of the purposes for which it was offered, unless the defendants proposed to follow up the testimony, with evidence that they acted under authority derived from the representative or representatives of Richard Dement's estate. The counsel for the defendants having declined to follow up the testimony as proposed by the court, it was rejected, and the ruling of the court upon this point of evidence forms the subject of the first exception.

The ruling of the court below upon the question raised for their consideration on this branch of the case, was unquestionably correct. The defendant having failed to connect himself with the estate of Richard Dement, occupied the position of a mere tort-feasor, who had invaded the possession of the plaintiff without authority, and under such circumstances it is very clear, that he could not be permitted to prove that the title to the property in dispute was not in the plaintiff, but was, at the time of the conversion, outstanding in a third party, with whom he had no connection or privity, to defeat the action, or in mitigation of damages. In the case of Duncan v. Spear, 11

Wend. 56, the supreme court of New York correctly ruled, that a defendant in trover can not set up property in a third person, without showing some title, claim, or interest in himself, derived from such person. And that it was not competent for the defendants to place themselves under the protection of a title to this property residing in the estate of Dement, without showing that they acted under authority derived from the representatives of that estate, and thus relieving themselves from the imputation of being mere wrong-doers, is a legal proposition, which has been considered as settled and at rest, in Westminster Hall, since the leading case upon this subject, of Armory v. Delamirie, decided by Chief Justice Pratt, and reported in 1 Stra. 505. In that case it was manifest from the evidence, that the real property was in a third person; but as that property was not connected with the defendant by transfer or authority, he was not allowed to rely upon it, nor to shelter himself from responsibility under it; and the finder of the jewel, a chimneysweeper's boy in London, recovered from the convertor, in an action of trover, the full value of the chattel. The cases of Sutton v. Buck, 2 Taunt. 302, and Burton v. Hughes, 2 Bing. 173, stand upon this principle.

We did not, however, understand the counsel for the appellant as controverting the correctness of this general proposition; but his point was, that the defendants should have been permitted to show that the plaintiff was in the possession of these slaves, at the time of the alleged conversion, only as a termor, the reversionary interest residing in the estate of Dement, as the lessor, not of course in bar of the action, but in mitigation of damages. The proposition presented by the counsel for the appellant is, that in an action of trover by a termor of a chattel against a wrong-doer, who has converted it to his own use, the measure of damages is not the full value of the property at the time of the conversion, but its value to the termor, and that, therefore, it was proper in this case to show that the relation of lessor and lessee existed between the plaintiff and the estate of Dement, that the jury might give only such damages as would cover the injury sustained by the plaintiff for the deprivation of the services of the slaves in dispute, for the unexpired term.

This proposition can not be maintained. In an action of trespass or trover by a termor against his reversioner, for an unauthorized interruption of his possession during the term, the measure of damages would be the actual loss sustained by

the lessee. But in an action against a stranger and wrong-doer, who has been guilty of an asportation or conversion of the property, the plaintiff is treated as the absolute and unqualified owner of the property, and he is entitled to recover its full value. By the common (differing in this respect from the Roman) law, the hirer of a chattel acquires, by virtue of the contract, a special property in the thing during the continuance of the term. The hirer is bound by the implied obligations of the contract to restore the thing hired, when the term for which it was hired has determined: Story on Bail., sec. 414. And although cases may occur in which he would be absolved from this obligation, yet it has been expressly decided in Gordon v. Harper, 7 T. R. 14, that a lessee can not justify his not returning the goods to the landlord at the end of his term, because a stranger had committed a trespass upon him by taking them. away. The language of Mr. Justice Lawrence, in Gordon v. Harper, is: "The tenant is bound to restore the goods to the landlord at the end of his term, and could not justify his not doing so, because a stranger had committed a trespass upon him by taking them away."

The law has placed at the command of the termor the power of vindicating his rights to the property, if they have been violated, and he is bound to use it. And as he is bound to restore the property to the person from whom he obtained it, or to stand responsible in damages for its full value, he has the right to recover its full value from a stranger who has wronged him. Upon this ground of ulterior responsibility, the borrower of a chattel may maintain an action of trespass or trover against a wrong-doer who has invaded his possession, and it must be obvious that unless he was allowed to recover the full value of the thing of which he was despoiled, the remedy placed at his disposal would not accomplish the purpose for which it was given. Story on Bailments, section 280, the author says: "But notwithstanding the borrower has no special property in the thing loaned, still it seems that if the injury done by a stranger is of such a nature that the bailee would be liable over to the lender for it, the latter may maintain an action of trespass, and even of trover, founded upon his possession, to recover damages; for the mere possession of property without title is sufficient against a wrongdoer."

In

In the case of Lyle v. Barker, 5 Binn. 457, it was held that a pawnee of goods could maintain trespass against a stranger who takes them away, and recover the whole value in damages,

AM. DEO. VOL LII-43

though they were pledged for less, upon the ground that he is answerable for the excess to the person who has the general property.

Mr. Chief Justice Tilghman, when considering this question of damages, on a motion for a new trial, said: "The point was very little argued, and no authorities cited [at the trial before the jury], so that my opinion was, upon a general recollection of the principle, that he who has a special property in chattels, being answerable to the general owner, unless he takes good care of them, may recover the whole in damages against a wrongdoer who takes them away. Upon subsequent reflection and reference to the authorities, I am satisfied that the charge was right." He then refers to the case of Heydon v. Smith, 13 Co. 69, where it is stated: "That he who hath a special property in goods shall have a general action of trespass against him who hath the general property, and upon the evidence damages shall be mitigated; but clearly the bailee, or he who hath the special property, shall have a general action of trespass against a stranger, and shall recover all in damages, because that he is chargeable over."

In White v. Webb, 15 Conn. 302, an action of trover was brought by a second mortgagee against a stranger. It was insisted that the plaintiff could only recover the value of his interest, that is, its value after deducting the amount due on the prior mortgage. It was ruled otherwise. The court said: "If the suit is brought by a bailee or special property man even against the general owner, then the plaintiff can recover the value of his special property only; but if the suit is against a stranger, then he recovers the value of the property and interest thereon according to the general rule, and holds the balance beyond his own interest, in trust for the general owner." We think, therefore, that the ruling of the court below was correct in the first exception, in whatever aspect the question presented for their consideration is to be viewed.

There is no analogy between this case and the case of a tenant in common, or part owner of a chattel, suing for his proportionable share or interest. Unless a plea in abatement is interposed, a tenant in common may recover in trover or trespass his aliquot share or proportion of interest in a chattel, but the rule that gives him the right to sue confines him to his own interest or share. He is under no ulterior responsibility to his co-tenant; the co-tenant may recover from the same defendant his interest in the chattel, and in this second action, the defendant is