Guyther v. Pettijohn, 28 N.C. 388, 6 Ired. 388 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 388, 6 Ired. 388

DAVID C. GUYTHER vs. JOHN C. PETTIJOHN.

When there are two part owners of a chattel, -and one of them, without th® ■assent of the other, destroys the chattel or renders it useless by vsc, th® former is liable in damages to the latter for the value of his share.

In such a case no demand is necessary before bringing the action.

The case of Lucas v. Wasson, 3 Dev. 398, cited and approved.

Appeal from the Superior Court of Law of Washington County, at the Spring Term, 1846, his Honor Judge Bailey presiding.

This was an action of trover, brough to recover damages for the conversion of two fishing seines. Plea, “ Not guilty.” In the year 1841,, the seines belonged to John Bennett and F. Fagan, as partners in the business of fishing. In August 1842, Fagan conveyed his interest in the two seines to the plaintiff. Bennett, who had the possession of the property, died in December 1842; and his executor, on the Slst day of January 1843, sold one of the seines to the defendant at public sale — the plaintiff then and there objecting and setting up his title to a half of the said seines. The plaintiff, however, afterwards withdrew his objection, saying “ that he would be entitled to his part.” At a future day, the executor sold to the defendant the other seine, at private sale. The plaintiff was not then present, nor did he give any assent to this sale. The defendant used the seines in fishing, up to the bringing of this action, which was on the first day of May in the year 1845.

The defendant insisted, First, that he and the plaintiff were tenants in common, and that one tenant in common could not maintain an action of trover against his co-tenant, for an injury done to the property held in common. And secondly, that the plaintiff should have made a demand, before he commenced his action. The Court charged the jury, that if the plaintiff assented to the sale made by the executor of Bennett, he could not recover in this action of trover, for a conversion of any of the property then sold. And that, if there was no assent, then the plaintiff could not recover, unless they further found, that the defendant had in fact destroyed the seines, or that they had been rendered useless by use, before the bringing of the action. And if that fact was proved against the defendant, then the defendant would be entitled to recover one half of the value' of the seines in damages. The Court further instructed the jury, that a demand before the bringing of the action was not necessary. The jury found a verdict for the plaintiff — a motion was made for a new trial, and it was refused. Judgment was then rendered; from which the defendant appealed.

Heath, for the plaintiff.

No counsel for the defendant.

Daniel, J.

The Court told the jury, that if the plaintiff assented to the sale of his interest in the seines, or either of them, then he could not recover, in this action, for a conversion of that property, which he had assented should be sold. The jury have by their verdict negatived any assent to the sale of the plaintiff’s interest in the seines. The case then, it seems, turned altogether upon the ground, whether the defendant had destroyed the seines, or whether he had rendered them useless by use, before the action was brought. The original owners had been fishing as partners, one or two years before the sale to the plaintiff by Fagan. But whether they had used either of these two seines during that time, does not appear in the case. But the evidence does shew that the defendant had in fact used these seines in fishing, for three springs, from the sale to him' up to the bringing of the action. There was, therefore, evidence to be left to the jury, as to the destruction of the seines by the defendant, or as to his rendering them useless by use. The law, we think, was correctly stated to the jury by the Court. Lucas v. Wasson, 3 Dev. 398.

Pan CURIAM. Judgment reversed.