
    HUDSON v. SWAN.
    
      City Court of Brooklyn;
    
    
      General Term, October, 1879.
    Replevin.—Claim and Delivery.—Lien.—Joint Owners.—Possession.—Pleading.—Amendment.—Trial.'—Appeal.
    Where one made an agreement with the two joint owners of a trotting horse, to take, train and drive it for one-third its earnings, and that the expenses of keeping, &c., should be paid by the joint owners equally, and that he should have a lien on the horse for the expenses, and retain possession of it until they were paid, and he afterwards purchased the interest of one of the joint owners,—
    
      Held, 1. That the agreement was equitable, and that he had a right to continue to act under it after he became part owner of the property.
    ' 2. That such an agreement was valid if" made between the joint owners.
    In the absence of such an agreement, one joint owner cannot, by an action of replevin, or proceedings of claim and delivery, take from the other the property owned in common, or set up and enforce an implied lien.
    Parties to an action may elect, on the trial, to take the words of the pleadings in a more liberal sense than the court would have given them, if the question had been raised, but they will be bound by their election.
    
    Where an amendment to a pleading might have been ordered by the court on the trial, it may be amended on appeal, so as to conform, to the proofs.
    
    Appeal by defendants from a judgment entered on the verdict of a jury, and from an order denying a new-trial.
    This action was brought by George H. Hudson against Frank C. Swan, James W. Paige and Douglass Gilmore, to recover possession of a trotting horse taken from the plaintiff by the defendants.
    It appeared, on the trial, that this horse was originally owned by defendant Paige, and by him sold to defendant Swan, who, in November, 1877, sold one-half thereof to George Hudson, the plaintiff’s father, for $500.
    In the spring of 1875, the plaintiff, at whose stable, on Fulton street, the horse was then being kept, made an agreement with his father and Swan to take the horse, train and drive him, on the following terms: Each party to receive one-third of the earnings of the horse, and the expenses of keeping, &c., to be paid by Swan and plaintiff’s father equally, and plaintiff to have a lien on the horse for said expenses, and retain possession of it until the expenses were paid.
    Under the agreement, plaintiff took the horse to the Prospect Park track, and during the season visited various places throughout the country.
    In November, 1878, at the request of defendant Swan, a statement of plaintiff’s claims against the horse under the foregoing agreement was rendered, showing the one-half due from Swan to be $397.36.
    In the meantime, plaintiff had purchased his father’s one-half interest in the horse for $800. In January, 1879, plaintiff bought of his father the half owned by Swan, his father acting under an authority given to him by Swan. This authority was disputed, and the jury found that point in favor of defendants.
    The defendant Swan claimed to have sold his interest in the horse to a Mr. Clemence, and the defendants, Gilmore and Paige, claiming to act as his agents, went to plaintiff’s stable, early in the morning of April 5, 1879, and obtained possession of the horse and took it away.
    The complaint alleged that plaintiff was the owner of the horse ; that it was worth $2,500 ; that on April 5, 1879, the defendants unlawfully and wrongfully took it from plaintiff’s possession, and demanded judgment for the return of the horse, or the value, $2,500, together with $500 damages.
    The answers denied plaintiff’s ownership, and that the horse was worth $2,500. They admitted the taking, but justified it on the ground that they took under the authority of Clemence, owner of an undivided one-half interest. That they took it for the purpose of delivering it to him, which they did, and it was then in his possession.
    The jury brought in a verdict for the plaintiff of $397.36, half the bill rendered, and $500, half the value of the horse, which they found to be worth $1,000. Other material facts appear in the opinion.
    The defendants appealed.
    
      John Reynolds (Williamson, Reynolds & Hin-Hchs, and also William. W. Goodrich, attorneys), for defendants, appellants.
    The answer interposed a complete defense (Morris on Replevin, 3 ed. p. 125 ; Wilson v. Gray, 8 Watts, 35 ; Wright v. Bennett, 3 Barb. 451; Rogers v. Arnold, 12 Wend. 30; Russell v. Allen, 13 N. Y. 173; Jones v. Brown, 25 L. J. Exch. 345; Barnes v. Bartlett, 15 Pick. 75 ; Davis v. Lottich, 46 N. Y. 393 ; King v. Philips, 1 Lans. 429). But plaintiff though defeated on the question of ownership, was allowed to recover on the theory that he had a lien. It is certain that no lien results from part ownership (Story on Partn. 6 ed. 647, § 414, a). Nor from advances made by one part owner upon the joint property (Ladd v. Billings, 15 Mass. 15). Nor had plaintiff any lien as stableman by common law (Grinnell v. Cook, 3 Hill, 491; Fox v. McGregor, 11 Barb. 42 ; Bissell v. Pease, 21 How. Pr. 139 ; Bass v. Pierce, 16 Barb. 597). Nor by the New York statute, since the statute requires written notice of an intention to detain (3 R. S. 6 ed. 817). It might be sufficient to argue that a part owner of a chattel can have no lien under any circumstances (Atkins v. Stanton, 6 Bosw. 648.) Any act or declaration inconsistent with the assertion of a lien, extinguishes the right of lien (Whittaker on Lien, 75; Coburn v. Kerswell, 35 Me. 126 ; Bean v. Bolton, 3 Phil. 93 ; Jones v. Tarleton, 9 M. & W. 673 ; Bradley v. Cole, 6 Hun, 660). So an actual purchase of the property (Folts v. Peter, 16 Ind. 244). So a mere unfounded claim of ownership from any source (Jacobs v. Latour, 5 Bing. 130 ; Evans v. Warren, 122 Mass. 303; Picquet v. McKay, 2 Blackf. [Ind.] 465 ; Wingard v. Banning, 39 Cal. 543 ; Gillespie v. Goddard, 1 Pittsb. 310; 2 Bing. 23; 11 Metc. 226). It is no answer to the above cases, that the plaintiff here did not, in fact, acquire the legal ownership. Neither, was the legal ownership acquired in (Jacobs v. Latour, 5 Bing. 130; Picquet v. McKay, 2 Blackf. [Ind.] 465 ; Evans v. Warren, 122 Mass. 303; Wingard v. Banning, 39 Cal. 543, supra; 15 Wend. 474 ; 4 Denio, 231). Nor that plaintiff canceled his lien claim merely to make the alleged purchase. Such was the case in Jacobs v. Latour, 5 Bing. 130 ; Wingard v. Banning, 39 Cal. 543. If a lienor claims title, he must prove that or lose his lien (Bean v. Bolton, 3 Phil. 93, 94; Wingard v. Banning, 39 Cal. 549, 550). A right of lien, once waived, is gone' forever (Picquet v. McKay, 2 Blackf. [Ind. ] 467). The objection as to ownership cannot be urged for the first time on appeal (Palmer v. Lorillard, 16 Johns. 348; Brookman v. Hamill, 46 N. Y. 636 ; Osgood v. Toole, 60 Id. 479 ; Levin v. Russell, 42 Id. 255 ; Reeder v. Sayre, 70 Id. 190 ; Adams v. Insurance Co., Id. 169). A complaint in replevin by a special property man or lienor must set forth all the particulars of the alleged lien (Morris on Replevin, ed. of 1878, p. 148 ; Curtis v. Jones, 3 Denio, 590 ; Gillespie v. Goddard, 1 Pittsb. 310, 311; Depew v. Leal, 2 Abb. Pr. 135 ; Scofield v. Whitelegge, 49 N. Y. 259 ; Hart v. Fitz Gerald, 2 Mass. 511). A party cannot so frame his pleading as that, if he fails in his attempt to sustain it, he can fall back and get inconsistent relief, where he does not even frame his pleading for it (Gillespie v. Goddard, 1 Pittsb. 311). No findings short of plaintiff’s absolute title can sustain recovery (Boynton v. Page, 13 Wend. 441; Chambers v. Hunt, 18 N. J. Law, 345; Bemas v. Beekman, 3 Wend. 667). The defect of the complaint in not alleging a lien is not cured by the verdict (Bain v. Clark, 10 Johns. 435). The objection to the question of lien being in the case, having been once taken by defendants, it could not be waived or lost by any subsequent proceedings (Hayden v. Palmer, 2 Hill, 205; Worrell v. Pamslee, 1 N. Y. 519 ; Duff v. Lyon, 1 E. D. Smith, 536 ; Simpson v. Waters, 3 Hill, 619). As lienor, the plaintiff should have been limited to the amount of his lien (Schley v. Lyon, 6 Ga. 530; Ullman v. Barnard, 7 Gray, 554; Wingard v. Banning, 39 Cal. 549 ; Dilworth v. McKelvey, 30 Mo. 149 ; Seaman v. Luce, 23 Barb. 254 ; Russell v. Butterfield, 21 Wend. 302; Fitzhugh v. Winan, 9 N. Y. 565). In replevin, a plaintiff only recovers upon the strength of a superior title (Wilson v. Reed, 3 Johns. 178; Butler v. Reynolds, 3 T. & C. 244). Replevin on ground of ownership must be brought by all the part owners as plaintiffs (Chambers v. Hunt, 18 N. J. Law, 343). It can never be used to effect the partition of chattels among joint owners (Konigsbury v. Lannitz, 1 E. D. Smith, 217; Russell v. Allen, 13 N. Y. 173; Collier v. Yearwood, 5 J. Baxter [Tenn.] 581; Walker v. Spring, 5 Hunt, 107; 2 Mass. 512). The possession of one tenant in common is the possession of all (Azel v. Betz, 2 E. D. Smith, 196, 191; King v. Phillips, 1 Lans. 428, 429, citing Greenl. Cr. 872; 4 Kent Com. 370). Entries made by plaintiff were not evidence for him of payment by him (Merrill v. Railroad Co., 16 Wend. 586). Judgment absolute may be given for appellant (Halsey v. Flint, 15 Abb. Pr. 372). Defendants’ taking was justified (Story on Partn. 6 ed. 647, § 414; King v. Phillips, 1 Lans. 428, 429 ; Littleton, § 323 ; Jones v. Brown, 25 L. J. Exch. 345 ; Kindy v. Green, 32 Mich. 310; Barnes v. Bartlett, 15 Pick. 71). When the taking is admitted, the method, or time, or manner, of the taking is irrelevant, so long as there was no breach of the peace, which is not claimed here (Harrison v. McIntosh, 1 Johns. 380). Proof must be confined to the issue (1 Greenl. on Ev. § 50). The exception to the judge’s charging the jury, after verdict rendered in accordance with his previous charge, was valid (Code Civ. Pro. § 1187; Brush v. Kohn, 9 Bosw. 587; United States Trust Co. v. Harris, 2 Id. 75).
    
      Erastus New, for plaintiff, respondent.
    It was proper to assess the value of the property at the amount of plaintiff’s interest therein, which was $500, one-half the value of the horse, and $397.36, the amount of his claim against defendant Swan (Allen v. Judson, 71 N. Y. 77; Fitshugh v. Winan, 9 Id. 559 ; Sedgw. on Dam. 586, 585, note 4 ; Field on Damages, § 837).
    
      
       Compare the preceding and the following case.
    
    
      
       See Knickerbocker Ins. Co. v. Nelson, p. 170 of this vol.
    
   Neilson, Ch. J.

In bringing the action the plaintiff claimed that he was entitled to the possession of the horse, and had been wrongfully deprived of that possession by the defendants. The principal contention on the trial was as to that right of possession. If it existed, there was no doubt as to the wrongful act charged

The plaintiff was the owner of one-half of the horse ; and conceding that Swan had been the owner of the other half, he sought to show that he had purchased Swan’s share through his agent. The authority of the agent was denied, and the jury found for the defendant on that question.

In support of his alleged right of possession, the plaintiff set up title to the property. If the case had been contested, with strict. attention to the words of the complaint, using those words in their limited sense, the right of possession depending on his having the entire title to the property, the plaintiff would have failed in his action. But the case was not so tried. It appeared that, before the plaintiff had become part owner, he was keeping the horse under an arrangement by which, as he testified, he was to hold the possession of it until the bill was paid. Part of the charges was payable by Swan. There was proof, tending to show that Swan had recognized the claim, on the bill having been rendered. The bill was produced, and the defendants’ counsel put it in evidence. Another exhibit is a letter from the defendant Swan, to this plaintiff, calling for a memorandum of the expense, as he was anxious to have it settled. That bill was before the court in a double aspect. The plaintiff sought to show, that it had been applied in part payment on the purchase made through Swan’s agent. But that attempted purchase, and application of the claim, having failed by reason of the agent’s want of authority, the account remained as if no such sale had been attempted. The plaintiff’s claim had not been thus satisfied. On the- trial even the items were contested. Late in the case, by the indulgence of the court, the proofs were opened to allow Mr. Swan to contradict the testimony of the plaintiff as to his version of the agreement. Finally, at about the close of the charge to the jury, the defendants’ counsel, addressing the court, said, “But I ask your Honor to submit to the jury the amount of the bill for which the parties have a lien,” and the required instruction was given. The jury were thus enabled the better to apprehend the work assigned to them.

Thus it was that the case went to the jury: First. As to the attempted purchase of Swan’s share of the horse. Secondly. In respect to the items and amount of the bill, and the agreement and right to hold the horse until payment should be made. On all those questions the testimony was conflicting, and the jury found, as appears by the verdict, that, at the time the horse was taken, the plaintiff, by virtue of the agreement, had the right of possession.

There can be no doubt of the equitable character of the agreement, or as to the right to continue acting under it after the plaintiff became part owner of the property, or as to the validity of such an agreement, if made, between the joint owners. It would be strange, indeed, if one of the parties could, by such a stipulation, beguile the other into an expensive course of service in keeping and managing the property, and yet have the common law right of possession, as if no stipulation had been made. In the absence of such an arrangement, one of those owners, having the same right of possession as the other, could not, by an action of replevin or of claim and delivery, take from the other the property thus owned in common, or set up and enforce an implied lien. In the argument before us, cases were cited as to the rules of the common law, and the practice peculiar to actions of replevin. But the distinction between those cases and this case lies in the fact that the rights of the parties before us depended upon, and were modified by the existing agreement.

I have referred to the fact that the plaintiff’s right to hold possession, so far as it was disclosed in the complaint, was as owner. Also, to the fact that the case was not tried on the theory that such right depended on his title as sole owner. The parties chose to occupy a much larger field. It may have been thought desirable that all the matters in difference between them should be determined and put beyond contention. In that view they had the right to take the words of the complaint in a more liberal sense than the court would have given them had the question been raised. The defendants may have thought that the jury would not find the agreement in the terms stated by plaintiff. The experiment was tried, and I am of opinion that the defendants must accept the adverse result, as they might have taken the benefits if the finding had been in their favor. Only on the theory of such an election can we account for the fact that while many objections were made and exceptions taken, there was no specific request that the court should hold or instruct the jury that the plaintiff could not recover unless he owned the entire property.

•The books are full of cases, where, without holding to the terms or limitations of the pleadings, trials were had after the like liberal fashion. In Williams v. People’s Fire Ins. Co. (57 N. Y. 274), held, that where, upon a trial, evidence is given presenting a defense, not set up in the answer, and the question is litigated without objection, the defendant is entitled to the benefit, the same as if it had been regularly pleaded. In Stilwell v. Carpenter (62 N. Y. 639), held, that the question as to the plaintiff’s right to join claims of her own and claims held in her representative capacity, not having been raised on the trial, could not be raised on appeal. In Updike v. Abil (60 Barb. 15), held, that the objection that a recovery was had on grounds not alleged in the complaint, comes too late after judgment. The like principle was applied in 2 Hilt. 514; 11 Abb. Pr. 435; in 52 N. Y. 404 ; 55 Id. 72 ; Id. 98. In Tyng v. Commercial Warehouse Co., 53 N. Y. 313, Judge Johhsow says: “Indeed, it is difficult to conceive of a case in which, after a trial and decision of the controversy, as appearing on the proofs, where no question has been made during the trial in respect to their relevancy under the pleadings, it would be the duty of the court, or within its rightful authority, to deprive the party of his recovery on the ground of incompleteness, or imperfection of the pleadings.”

It is proper to observe that in many cases that rule has been freely applied,- as the pleading might have been amended had the question been raised at the trial. An amendment in this case would not have changed the cause of action. At most, there would have been a further specification of the grounds on which the taking was deemed wrongful. The action would still have been the same—the gravamen the same. I have no doubt that, if there had been occasion, the court could have ordered the amendment; and that now the complaint may be amended to conform to the proofs.

The judgment and order appealed from should be affirmed with costs.

McCue, J., dissented. 
      
       S. C., fully reported in 2 Abb. New Cas. 238.
     