Alexander H. Abrahams & Co. v. The South-Western Railroad Bank
| Decision Date | 08 April 1870 |
| Citation | 1 S.C. 441 |
| Parties | ALEXANDER H. ABRAHAMS & CO. v. THE SOUTH-WESTERN RAILROAD BANK. |
| Court | South Carolina Supreme Court |
Trover lies for the conversion of bank bills.
A borrowed from B., an incorporated bank, $4,000 in Confederate Treasury notes, to be returned within ten days, and left with B., as security, $4,000 in its own bills-the latter being more valuable than the former. A. returned within the limited time, offered to return $4,000 in Confederate Treasury notes and demanded back the $4,000 he had left with B. as security. The latter refused to take the one or return the other Held , by Moses, C. J., (Wright, A. J., concurring,) that B.'s refusal to return the $4,000 in its own bills was a conversion of those bills, and that trover lay for such conversion.
Willard A. J., dissenting, held , that the circumstances of the transaction did not show that the identical bills left with B., but only that bills of the latter, to the amount of $4,000, were to be returned; that a debt was created on both sides, and that trover, therefore, did not lie.
BEFORE CARPENTER, J., AT CHARLESTON, JUNE TERM, 1869.
This was a writ of error to remove the record and proceedings, in the case stated, from the Circuit into the Supreme Court.
The case and exception are stated in a report made by His Honor the Circuit Judge, which was treated as a bill of exceptions, and is as follows:
" This was an action of trover to recover from the defendants certain of their bills, amounting, nominally, to $4,000, deposited by the plaintiffs in the said bank in 1862 or 1863. The declaration, which will be certified with the writ of error, contains only two counts, each in trover.
A. H. Abrahams, one of the plaintiffs, testified as follows:
In 1862, or 1863, witness had in his possession $4,000 of the bills of the South-western Railroad Bank, of the denomination of $20's and $10's, and, also, some of $5's; how many of each can't say; bills belonged to himself and son, the other plaintiff; he carried them to the bank, and asked Mr. Fuller, the Teller, to let him have the use, for eight or ten days, of $4,000 Confederate bills, which were less valuable, and hold his $4,000 of South-western Railroad bills as security, until he should return the Confederate bills; Mr. Fuller applied to Mr. Rose, the President, to know if it could be done; Mr. Fuller returned, saying he was authorized; Mr. Fuller then counted the bills which witness handed him, found $4,000, and put them aside, and then delivered to witness $4,000 in Confederate notes; within eight or ten days after, witness called at the bank again, and asked to have his parcel of bills returned to him, offering, at the same time, the $4,000 in Confederate notes which he had borrowed; the President directed Mr. Fuller, the Teller, to give witness his package of notes, and receive the $4,000 Confederate notes, as previously agreed; Mr. Fuller then asked witness, as a favor to himself, to let matters stand until the next day, as he was very busy; witness returned the next day; Mr. Fuller told witness that Mr. Cochran, the Cashier, wished to see him, the witness; Mr. Cochran asked witness if he was not a friend of the bank; if so, why did he wish to withdraw the bills thus left by him? that, if the Confederate notes were not good, neither were the notes of that bank; witness, nevertheless, persisted in his purpose of having his bills again, but they were withheld from him; he told Mr. Cochran that he came for them, and desired to have them; but he was never allowed to have them again, nor would the bank take back the Confederate $4,000 which he had borrowed on the security of the said bills, and which he offered to return when he applied at each time; witness does not recollect what was the value of these bank notes at the time of this transaction; they were worth more than Confederate notes by, perhaps, 20 or 30 per cent.; they are now worth about 65 per cent.; he never received credit in his bank book, (which was produced and examined,) or, as far as he knows or believes, in any book of the bank, for this $4,000; it never was his intention to deposit them; he meant to leave them, as a simple pledge, to be redeemed by a return of the $4,000 in Confederate bills; on refusal of bank to return him his said bills, he did nothing-condition of country prevented; at the close of his account with the bank, in 186-, there ought to have been a balance to his credit of $6,000.
On this evidence I ruled ‘ that the plaintiffs could not recover, under the form of action they had adopted, to wit: Trover-because they had not shown that they paid any money, or made any legal tender of the $4,000, or its value, when they made the demand for the package of South-western Railroad bank bills, lodged as security, or, at any other time,’ and ordered a non-suit.
To this ruling the plaintiffs did then, and still do except, for error in law."
The error assigned is as follows:
That His Honor has assumed that the obligation of the plaintiffs was to pay, or tender payment, for the bills lodged by them as security, lawful money, before they could entitle themselves to demand them. Whereas, their obligation was simply to redeem their bills, which were already their own, by returning, or offering to return, Confederate States notes to the amount of $4,000; wherefore, they pray that the said judgment of non-suit may be reversed and vacated.
DeTreville , for plaintiffs.
Offer of plaintiffs to return the Confederate notes, received by them, was a compliance with their contract or obligation, and entitled them to the package of bills which they had pledged. The refusal to deliver, when demanded, was a conversion.-Story on Bail., §§ 341, 345, 346; Jones on Bail., 79, 80; Bristol vs. Bush , 7 Johns. R., 254.
A pawner who offers to redeem within the time and in the manner agreed on, becomes, thereby, entitled, unconditionally, to the thing pawned, and a refusal to deliver is a conversion; 10 Johns. R., 471; McLean vs. Walker , 2 Esp. N. P., 625, margin.
Trover is the proper action for the recovery of choses in action, as bank bills, promissory notes, bonds, & c.- Todd vs. Cruikshanks , 3 Johns. R., 43; 12 Johns. R., 484; Clowes vs. Hawley , 2 Esp. N. P., 543; 2 Chit. Pl., 835, and notes.
Pringle , contra.
It was necessary that the plaintiffs should have proved that they made a legal tender of the value, either of the $4,000 of the Southwestern Railroad Bank notes, or of the Confederate notes, before they can maintain their action, and that they made no such tender. Parker vs. Simons & Epping , 2 McM. 188; Thorington vs. Smith (8 Wal. 1); Phillips vs. Hooker , Am. Law. Reg., Vol. 7, No. 1, p. 16.
The tender of the Confederate notes by the plaintiffs is not proved by the evidence, and would not be sufficient, if proved.-Const. U.S. Art. I, § 10; Stat. U.S. 18th January, 1837, 1 Bright. 152; Stat. U.S. 11th July, 1862, 2 Bright. 109.
To sustain the action of trover, one must have the right of property with the right to possession. If these unite in him, and conversion is proved, a recovery must follow.
It is conceded in the argument that bank notes may be the subject of this action. The authorities, both in England and our own State, sustain that conclusion.
The objection to the plaintiffs' right of recovery was put, both by the Judge below and the counsel for the defendant in his argument here, upon the ground that when demand was made for the parcel of South-western Railroad Bank bills, they failed to show that they paid any money or made any legal tender of the four thousand dollars or its value.
The action was not brought for the recovery of a debt, but for damages for the conversion of specific choses in action .
If the bank had disposed, by sales, of the notes left with them, the plaintiffs would have been at liberty to waive the tort and sue for money had and received to their use. The gist of the action was the conversion, and there was, therefore, no necessity, on the part of the plaintiffs, to pay any money or make any legal tender, to entitle them to a restitution of the bills in the hands of the defendant. The bank did not consider that the agreement imposed a liability on the plaintiffs, as for a debt due. The notes they left were of greater value, as shown by the evidence, than those they received. The refusal to return the...
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