Page:Harvard Law Review Volume 8.djvu/525

509 RECENT CASES. 509 had cut logs from plaintiff's land, came up on exceptions to the Supreme Court of Florida, which laid down the following rule as to assessing damages in cases of this kind, viz. : Where the defendant is an unintentional or mistaken trespasser, or an inno- cent vendee from such mistaken trespasser, the value at the time and place of its first conversion. Wright et al. v. Skinner, i6 So. Rep. 335 (Fla.). The Florida court hold that an innocent vendee from an innocent trespasser will only be liable for the same damages as the innocent trespasser himself. But it is sub- mitted that this is not sound. The vendee commits a wrong when he purchases the property, which, though out of the possession of the plaintiff, is still owned by him. He is guilty of a conversion at ihe time of sale and must be liable to plaintiff for the value of the goods at that time. But granting that he stands on the same footing as the trespasser, yet the Florida court is still in error in its ruling. They allow as damages the value at the time of first conversion, which they say is when the logs are first taken from the plaintiff''! land. They cite a number of decisions to uphold their view. But most of those cases go directly against it, and hold that damages in case of unintentional trespass shall be the value of the trees, or whatever the several chattels may be, as they stood in the ground. This is quite different from giving the value when they had been removed from the plaintiff's land and been trimmed and increased in value, as was the case at bar. The Florida court proceed on the basis that a trespasser cannot get possession of the trees till he has taken them off the land* owned by the plaintiff. This is not sound, as is shown by the fact that larceny cannot be committed ijy severing articles from the realty if the act is continuous and no reverting of the articles after severance, when they are chattels and thus subject to larceny, takes place. Reg. v. Townley, 12 Cox, C. C. 59. The Florida court must have mistaken the cases which they cite as supporting their view on this point, which is wrong, as well as the first one. Forsyth V. Wells, 41 Pa. St. 291, the first of a long line of concurring cases, and 2 Sedg. Dam., 8th ed., § 500 et seg., uphold the view here advanced. Sale of Goods — Purchaser for Value — Pre-existing Debt. — The ques- tion before the court being whether a naked pre-existing debt is such a consideration or payment for the transfer of goods as will defeat replevin by the original vendor, who sets up fraud in the purchase from him, the Michigan Supreme Court held, Montgomery & Hooker, ]]., dissenting, that it is not such a consideration. Schloss v. Feltus, 61 N. W. Rep. 797 (Mich.). The court say that though one who discharges a pre-existing debt in exchange for a negotiable instrument may be regarded as a purchaser on good consideration, one who does so in exchange for other chattels is not so regarded. Although this seems to be the general authority, one cannot help seeing the justice of the view taken by the dis- senting judges. It would seem that their opinion is the correct one on principle, and that no valid distinction can be made between negotiable paper and other chattels. Work V. Braytou, 5 Ind. 396; Frey v. Clifford, 44 Cal. 335. In New York, one who takes even a negotiable note and gives in exchange a discharge of a pre-existing debt is not regarded as a purchaser for valuable consideration. Lawrence v. Clark, 36 N. Y. 128; Weaver v. Bar den, 49 N. Y. 286. Sales — Factors Act, 1889 — Hire and Purchase Agreement. — Plaintiff let a piano to Sullivan under the ordinary hire and purchase agreement, by which the piano was to become the property of the " hirer " when a certain number of monthly instal- ments had been paid, bat until the full amount was paid it was to remain the property of the " owner " — plaintiff. Before all the instalments were paid, Sullivan sold the piano to defendant, and was convicted of larceny under Statute 24 & 25 Vict. c. 96. By sec- tion 100 of this statute it is provided that on conviction the property shall be restored to the owner, and the court before whom the offender is tried shall order restitution, " Provided also that nothing in this section shall apply to the case of any trustee, banker, merchant, attorney, factor, broker, or other agent intrusted with the possession of goods or documents of title to goods," etc. Under this, counsel for prosecution applied for an order of restitution, and it was refused. Plaintiff now brings this action to recover from defendant damages for the conversion. Held, that he could not re- cover; that under the Factors Act title passed to defendant, as the piano was sold him by a person holding it under an agreement to buy; and that although the Factors Act did not in terms repeal the 24th & 25th of Victoria, yet it did in effect as far as this restitution was concerned. Held also, that under the Sale of Goods Act of 1893, providing that " where goods have been stolen and the offender is prosecuted to convic- tion, the property reverts to the owner," plaintiff cannot maintain this action ; that although this Act of 1893 was capable of the construction claimed by plaintiff — /. e. contrary to Factors Act — such was not the proper one when it was borne in mind that this Sale of Goods Act was passed to consolidate the law. " The true way of