
    Yamhill Bridge Company, Plaintiffs in Error, v. William T. Newby, Defendant in Error.
    
      Error to Yamhill.
    
    One tenant in common may sue another, who sells or destroys the common goods.
    
      Pratt <& Campbell, for plaintiffs in error*.
    
      Kelly (& Chinn, for defendant in error.
   Williams, C. J.

The declaration in this case contains two special counts, upon an order drawn in favor of Newby upon the said Bridge Company, and on the common counts. The jury found a vei'dict for $979, under the third count, which is for goods bargained and sold.” Evidence was given by the respective parties to prove and disprove all the counts; but that which was adduced in support of the common counts is in substance as follows :

The company entered into a contract with Webber & Wren, by which the latter were to build a bridge for the company, and be paid by instalments as tbe work progressed. When the bridge was partly built, and materials for its completion were on tbe ground, tbe contractors, having received all but tbe last instalment under tbeir contract, failed, and made a conveyance to tbeir mechanics and material men of tbe bridge and materials on hand<s Newby was one of these grantees; being a creditor of Webber & for materials, to the amount of $820, tbe said conveyance was acknowledged and recorded. Endorsed thereon was a conveyance by all the grantees therein, except Newby, of all tbeir rights thereunder to tbe said company. Tbe company used tbe said materials for tbe completion of tbeir bridge. Several reasons are now urged by tbe company for reversing tbe judgment of the District Court; one of which is, that plaintiff and defendant were tenants in common in tbe bridge and materials, and therefore tbe company bad a right to use tbe common property for the common good of tbe parties. We do not think that Webber & Wren conveyed any property in tbe bridge to Newby and bis co-grantees. They bad nothing to convey. They bad been fully paid for what they bad done. When they quit work, tbe bridge, which they left partly erected, attached to tbe freehold, and became the exclusive property of the company. Newby and tbe company owned tbe materials in common. This common property tbe company took and converted to tbeir own use, by incorporating it into tbeir bridge. They changed wbatyas the .^personalty of Newby into tbeir own exclusive realty^ When one tenant in common sells of'destroys tbe common goods, it is well-settled that he may be sued by a co-tenant for such co-tenant’s share; and, upon this principle, we think that Newby can maintain an action against tbe company for bis part of said materials, by them taken a,n,cLnse.d.up in the completion of them bridge. (Brown v. Hedges, 1 Sack. 290; Heath v. Hubbard, 4 East, 110; Fannings v. Granville, 1 Taunt. 241.)

Plaintiffs in error argued, in tbe second place, that tbe bill of exceptions undertakes to state all the evidence in support of the common counts, and does not show any thing about the damages, and, therefore, the judgment below cannot be sustained. Though the bill of exceptions says, “ the evidence in support of the common counts was as follows,” yet it clearly appears elsewhere in said bill that other evidence than that stated was submitted to the jury; and more than this, the bill simply sets forth certain facts proven, and does not, in truth, detail the evidence as it professes. Manifestly there was a question made in the District Court, as to the right of Newby to recover at all under the third count, and the bill saves all the facts pertinent to that question; but evidence as to the amount of damages, in no way concerns the right of recovery, and was, therefore, very properly omitted. Newby was entitled to recover nominal damages at any rate, and we cannot say that a verdict for more was found by the jury without, or contrary to evidence. No evidence, it is said, was given to the jury, that Newby ever accepted the conveyance to him and others, by Webber & Wren, and therefore he ought not to have obtained judgment. Taking the facts, that Webber & Wren had failed; that the conveyance was made to pay debts; that it was recorded; that it was actually accepted by the other grantees, and that this suit was brought in affirmance of it; we think the jury were warranted in finding that it had been accepted by Newby.

Judgment is affirmed.  