As to the refusal to instruct the jury that the plaintiff cannot, in any event, recover more than one thousand quarter-sacks:
1. The twelve hundred sacks were, by all the testimony, the property of Chazal.
True, the defendants claimed flour under Chazal, but no part of this pile had been set apart to them by their vendor, or by his agents, Tilden & Little. Therefore the defendants had no property or possessory rights, at the time of the seizure, in a single bag of it. Now, as the whole pile had been put into the plaintiff's possession, by Tilden & Little, that possession was, of itself, a sufficient title as against the defendants, who were wrong-doers. And the jury were so instructed by the Court. (13 Pick. 183; 6 Hill. 208.)
If the defendants had performed acts amounting to a conversion of the thousand bags, they stood charged, by reason thereof, with the full value of all the sacks so converted; and no deduction could be claimed therefrom, except upon the ground of a return or a recapture, and there was no evidence in the case to prove either. If, after they had converted it, as against the plaintiff, other parties took it tortiously from them, that fact would not, to any extent, impair the plaintiff's rights.
All that the defendants were entitled to on the point of seizure, was a correct charge, and the charge on that point was free from error.
Custody and control are enough. Attaching the flour and putting a keeper in charge of it, would amount to such custody and control, withoutan actual removal or counting.
The evidence on the point of seizure went beyond the facts contemplated in the charge--for about four hundred bags were actually removed and carried away by the sheriff--and this fact not only amounted to a clear conversion of the four hundred bags, but illustrated more fully the intent and purpose of the sheriff in putting a keeper over the entire pile.
It is not necessary to show a manual taking of the thing in question, nor that the defendant has applied it to his own use; but the assuming a right to dispose of it, or exercise of dominion over it, to the exclusion of, or in defiance of, the plaintiff's right, is a conversion. (Bristow v. Burt, 7 Johns. 254: Murray v. Barliney , 10 Id. 172; Reynolds v. Shuler, 5 Cow. 323; Back v. Baxter , 3 Miss. 207.)
To constitute an attachment it is necessary that the officer should have the actual custody of the goods; but it is sufficient if he is in view of the goods, having the power of taking actual possession. (12 Mass. 495, Train v. Wellington .)
Can there be any doubt but that the sheriff had such a possession of the flour as would have enabledhim to hold it as against a subsequent attachment.
And such possession as would have enabled him to maintain trespass or trover against any one who might have taken it from him without a superior right?
Though our receipt and mortgage call for one thousand sacks only, still Chazal, by his authorized agents, put the pile of twelve hundred sacks into our hands. We then had the lawful possession of the entire pile as against Chazal.
The defendants stand in the position of strangers invading this possession. They had receipts, to be sure, but that was all. Not a bag of our pile had ever been designated as a subject-matter upon which their receipts were to operate.
If the bulk passes into the hands of the vendee, with the vendor's consent, subject to a right in the vendor to reclaim the excess, the contract of sale is completed by the delivery of the bulk; so that if the bulk should be destroyed by fire, or any other casualty, the loss would fall on the vendee as to the part sold. (Story on Cont. Sec. 799.)
Again, segregation is not an inflexible rule of property, but is necessary only in those cases where the intention of the parties cannot be effectuated withoutit.
It is not an end but a means, simply, to accomplish an end, which the parties contemplated. (13 Pick. 183; 20 Id. 280.)
Such a delivery (absolute in part, and provisional as to the residue,) would be a good delivery under the Statute of Frauds, as between the parties.
It would be good as against a subsequent purchaser. (2 Comst. 258, Crofoot v. Bennett .) And as against an attaching creditor if there were no fraud in fact.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray and Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
When the plaintiff demanded a segregation of the 1,000 sacks which belonged to him, the act of the warehousemen in setting aside for him, and marking in his name, a separate bulk of 1,196 sacks, amounted to a complete delivery of the whole. They might have afterwards adjusted with the plaintiff for the excess, but the delivery destroyed the privity as to the goods delivered between Tilden & Little and Chazal, and made them afterwards the agents alone of the plaintiff.
The law was correctly given by the Court below in regard to the seizure by the sheriff. He took possession of the goods, and thereby deprived the plaintiff of them. That they were afterwards taken from him, cannot excuse his tort. These two questions settle all that is material to the merits of the case.
The other errors relied on, are either not well assigned, or of no weight to affect the rights of the parties.
Judgment affirmed.