48 N.Y. 492, Salt Springs National Bank v. Wheeler

Citation48 N.Y. 492
Party NameTHE SALT SPRINGS NATIONAL BANK, Respondent, v. JOHN R. WHEELER, Appellant.
Case DateMay 01, 1872
CourtNew York Court of Appeals

Page 492

48 N.Y. 492

THE SALT SPRINGS NATIONAL BANK, Respondent,

v.

JOHN R. WHEELER, Appellant.

New York Court of Appeal

May 1, 1872

Submitted Jan. 5, 1872.

Page 493

[Copyrighted Material Omitted]

Page 494

COUNSEL

W. B. Smith for the appellant. If the drafts were not in existence when the demand was made, then a refusal does not amount to conversion. (Packard v. Getman, 4 Wend., 613, Hawkins v. Hoffman, 6 Hill, 586; Whitney v. Slawson, 30 Barb., 276; 32 Id., 396; Bowman v. Eaton, 24 Id., 528; Kelsey v. Griswold, 6 Id., 436; 1 Wait's L. & P., § 24; Ad. on Torts, 3d ed., 311.)

Hunt & Green for the respondent. The bills were valid, and any person destroying them or refusing to deliver on demand would be liable for their value. (1 Cowen, 240; 2 Hill, 550; 1 Sand., 96; 4 Id., 248; 10 John. R., 172; 3 John., 432; 12 Id., 484; 19 Id., 66; 3 Camp. R., 476; Sedgwick on Damages, 3d ed., 514, and cases cited; Decker v. Mathews, 2 Kernan, 12 N.Y. R., 313.)

HUNT, C.

The advantage of an action in trover, rather than an action in assumpsit, in the collection of a debt, is apparent. It gives a right to hold to bail during the pendency of the action, and a right of imprisonment upon an execution, in addition to the usual resort to the property of the defendant. To procure this advantage the plaintiffs have passed by their plain and obvious remedy, of an action against the defendant for a breach of contract, and have brought an action of trover. The question is whether they can sustain it.

During the autumn of 1865, the defendant being indebted to the firm of Jaycox & Green in the sum of $1,012.18, that firm drew upon him for the amount in three several bills of exchange at one month each. These bills were discounted by the plaintiff at about the time of their several dates, and had all matured before the 30th day of December. On that day one of them had been due two and a half months, the second nearly two months, the last a few days. These drafts were severally transmitted by the plaintiff to the defendant for acceptance and payment, he being engaged in the business of a banker also. Before the 30th of December the defendant failed and made an assignment. On that day the plaintiff's agent

Page 495

demanded of him the drafts in question. He replied that he thought he had returned them to the plaintiff. Upon reflection and examination he stated that he could not find them, and that he might have burned them up in destroying other papers that he considered of no value. It was not pretended by any witness that the defendant asserted any title to the bills or claimed any right to hold or retain them. There was no reason to doubt the accuracy of the defendant's statement. The judge finds that they were lost, mislaid or destroyed through the negligence of the defendant. He also finds that he "converted the same."

To authorize the action of trover, two things are necessary: 1. Property in the plaintiff with a right of possession; and 2. A conversion by the defendant of the thing to his own use. This conversion consists of the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in defiance of the plaintiff's right, or in withholding it under a claim of title. (1 Greenl. Ev., § 642, and cases cited.) The destruction referred to as constituting a conversion is an intentional destruction, not an accidental act. Thus, a misdelivery of goods by a bailee is a conversion. (Id., and Deming v. Barclay, 2 B. & A., 702; Seyd v. Hay, 4 T. R., 260.)But the accidental loss by the carrier is not. (Ross v. Johns, 5 Burr, 2825; Dwight v. Benton, 1 Pick., 50.) A wrongful sale is a conversion, but a purchase in good faith is not in the first instance a conversion. (Id., § 642.) The accidental loss or destruction of an article by one lawfully in its possession has never been held to be a conversion. (Bromley v. Coxwell, 2 B. & P., 438; Cairns v....

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