#### William R. Rotch *et al. versus*Samuel W. Hawej.

If a person hires a horse to go a certain distance but goes further, he is liable in trover for an unlawful conversion ; but if the owner of the horse receives pay* ment for the whole distance travelled, he thereby ratifies the act of the hirer in going further than the original contract allowed, so that trover will not lie 5 and if the hirer has injured the horse, on the journey, by ill usage, the owner’s remedy is an action on the case for misfeasance.

Trover for the conversion of a horse. Trial before *Morton*J. upon the general issue.

It appeared that in July 1829, the defendant hired a horse and gig of the plaintiffs, who kept a livery stable, to go from New Bedford to Fall River and back to New Bedford. The defendant took the horse and gig in the morning and returned in the evening. Immediately after the return of the horse to the stable, it was discovered that he was sick ; and he continued sick about three days and then died. The defendant, upon his return, told the plaintiffs that he had been further than he expected to have gone, and that he had travelled to Fall River, thence to Warren and Bristol, and from Bristol through Westport to New Bedford; to which the plaintiffs made no objection. On being asked what was to be paid for the use of the horse and gig, the plaintiffs desired the defendant to settle with or pay their agent, of whom the defendant had engaged the horse and gig. The defendant stated to such agent the places to which he had been and the distance, and payment was received for the whole distance so stated, but there was evidence tending to show that the actual distance was greatei *141than the defendant represented it. Witnesses called by the plaintiffs testified that in their opinion the death of the horse was occasioned by hard driving in very warm weather.

The defendant contended, that although the original contract between the parties was for the hire of the horse and gig to go from New Bedford to Fall River and back ; and although the defendant, in going from Fall River to Warren, Bristol, &c., had deviated from the terms of the original contract, yet inasmuch as. on his return to New Bedford he had informed the plaintiffs of the route he had in fact travelled, and no objection was then made by the plaintiffs to his having gone further than he was permitted by the terms of the original contract; and especially as the plaintiffs, after being informed of the route taken, had received payment for the drive upon that route as upon a contract of hire : — the receipt of payment under such circumstances would warrant the jury in inferring a subsequent assent, on the part of the plaintiffs, to the use of the horse by the defendant, in going from Fall River to Warren, &c., which assent, if duly proved, would justify him in going that route. And if such assent were given, although the death of the horse might have happened, either from hard driving, or from the defendant’s giving him food or water improperly, during any part of that route, the defendant would not be answerable, in this form of action, for such abuse of the property confided to him.

But the judge informed the defendant’s counsel, that he should rule this part of the case against him ; and that he should instruct the jury, that if they should believe that the death of the horse happened from any abuse or improper treatment of the same by the defendant in going from New Bedford to Fall River, or if the horse, at the time of his being let to the defendant, was diseased and unable to perform the journey from New Bedford to Fall River and back, and the death happened from such disease, their verdict must be for the defendant; but if they should believe that the death happened from any abuse or improper treatment by the defendant after leaving Fall River and going thence to Warren, Bristol, &c., and thence to New Bedford, or if the horse, at he time of his being let, was diseased, but able to perform *142the journey from New Bedford to Fall River and back, but not able to perform the journey travelled by the defendant, their verdict must be for the plaintiffs for the value of the horse in the condition he was in at the time of leaving Fall River.

*Oct. 26th.*

*April 24th,*1832, *at Taunton.*

The defendant thereupon consented that the plaintiffs might take a verdict, with the view of having the point above ruled against the defendant, determined by the whole Court.

*L. Williams*and *Spooner*for the defendant.

To maintain trover, the owner of the chattel must have possession or a right of immediate possession, at the time of the conversion ; Chit. PI. 150; and there must be evidence of a conversion. Here the plaintiffs had no right of possession so long as the defendant kept within the contract; and they have ratified his act in deviating from the original contract; which is equivalent to a previous assent. *Smith*v. *Field,*5 T. R. 402. Nor was there a conversion by the defendant. 3 Stark. Ev. 1492, 1493; 1 Chit. PI. 154; *Bromley*v. *Coxwell,*2 Bos. & Pul 438; *Ross*v. *Johnson,*5 Burr. 2825. The subsequent as sent varies this case from *Homer*v. *Thwing,*3 Pick. 492 and *Wheelock v. Wheelright,*5 Mass. R. 104. An action on the case for misfeasance is the plaintiffs’ proper remedy Com. Dig. *Action on the Case for Misfeasance, A 3; Jennings*v. *Randall,*8 T. R. 335.

*Coffin*and *Warren,*for the plaintiffs,

said that when the horse was returned, the plaintiffs had a vested right to bring an action of trover; *Homer*v. *Thwing,*3 Pick. 492; that they had not waived this right and had not assented to the wrongful act of the defendant; that trover was the plaintiffs’ only remedy; *Wheelock*v. *Wheelright,*5 Mass. R. 104; *Dench*v. *Walker,*14 Mass. R. 499; *Murray*v. *Burling,*10 Johns. R. 172; and that as the defendant admits trover would lie but for the supposed ratification, such ratification should have been pleaded specially, being matter of excuse. 1 Tidd’s Pract. 599.

Putnam J.

delivered the opinion of the Court. There can be no question but that the plaintiffs’ action would be maintained, if they had relied upon the original contract. They might have elected and insisted that the defendant converted *143the horse by going beyond the journey agreed upon ; but then the property would have changed and vested in the defendant. Story on Bailments, 262, pi. 396. The plaintiffs would have no right to be paid for the use of it, after the conversion.

But we think, that if there were no deception, misrepresentation or concealment practised upon the plaintiffs to induce them to receive payment for the hire of the horse from New Bedford to Bristol, instead of Fall River, as originally agreed upon, the contract should be considered as if it had been originally made for the hire from New Bedford to Bristol. In such case the subsequent assent would be equivalent to a previous agreement. If the jury should, from the facts to be submitted to them, find that the plaintiffs did so assent to the use which the defendant had made of the horse, and did receive payment accordingly, it is the opinion of the Court that the plaintiffs cannot maintain the action for trover and conversion, notwithstanding the evidence should prove that the defendant caused the death of the horse by immoderate driving, or improper feeding or management, during the journey. The remedy for such injuries, is case for the malfeasance, and not trover for the conversion.1

The verdict must be set aside and a new trial granted.

1

 Seo *Brewer*v. *Sparrow, 7*Barn. & Cressw. 310; *M'Neills*v. *Brooks,*1 Verger, 75; *Schenck*v. *Strong,*1 South. 87; *Swift*v. *Moseley,*10 Vermont R. 208.