Bixel v. Bixel
| Decision Date | 05 October 1886 |
| Docket Number | 12,011 |
| Citation | 8 N.E. 614,107 Ind. 534 |
| Parties | Bixel v. Bixel |
| Court | Indiana Supreme Court |
From the Marshall Circuit Court.
Judgment affirmed, with costs.
E. C Martindale and V. Kirk, for appellant.
M. A O. Packard, O. M. Packard and A. C. Capron, for appellee.
Appellant charges in his complaint, that in the year 1878 appellee wrongfully and unlawfully took possession of, and converted to his own use, wheat, corn, horses, hogs, cattle, a wagon harness, and $ 120 in money, the property of appellant.
In his answer, appellee admits that he received from appellant the property described in the complaint, except the money, which he denies having received, and avers that the number of bushels of wheat and corn is overstated in the complaint. It is further averred in the answer, that appellant, being compelled to be absent, put the property into the possession of appellee, with instructions to care for and sell it, and apply the proceeds in payment of appellant's debts; that he did sell it, with the exception of some of the hogs that died, and applied the proceeds as directed.
The evidence is such as to make it incumbent upon this court to accept as an established fact, that appellee did not take possession of the property in 1878, either wrongfully or unlawfully, but, on the contrary, took possession of and sold it by the direction of appellant.
The case is prosecuted and defended upon two theories. Appellant contends that notwithstanding the fact that the possession and sale of the property by appellee were with his consent and under his direction, he may recover in this action the value of the property, because it is not shown that appellee applied the proceeds of the sales to the payment of his, appellant's debts.
Appellee's contention is, that the gravamen of the action is the wrongful conversion of the property, and not of the proceeds of the sales thereof, and that hence appellant can not recover in this action, because it is not shown that the possession and sale of the property were wrongful.
But for the code abolishing distinct forms of action, this would be an action of trover. In such a case, the plaintiff, in order to recover, must show that the property described in the declaration has been wrongfully converted by the defendant. It has been said that where there has been such a conversion by a sale of the property, the plaintiff may maintain trover, or he may dispense with the wrong and suppose the sale made by his consent, and bring an action for the money for which the property was sold, as money received to his use. Cooley Torts, pp. 92-3; Murray v. Burling, 10 Johns. 172. Both of these remedies could not be sought in the same action. Palmer v. Jarmain, 2 M. & W. 282.
The holding in that case is correctly stated in the syllabus, as follows: "If a party, authorized by the holder of a bill of exchange to get it discounted, and to apply the proceeds in a particular way, does get it discounted, but misapplies any part of the proceeds, he can not be sued in trover for the bill, but must be sued for money had and received."
The case of Goss v. Emerson, 3 Foster (N.H.) 38, was for the alleged conversion of promissory notes. The notes were placed in the hands of the defendant as collateral security. He transferred the notes to another, who collected them. It was held, that as the defendant came rightfully into the possession of the notes, and had a right to transfer his interest in them, he could not be made liable for what had been collected upon them in an action of trover for their wrongful conversion. It was said: "It is the written instrument, and not the money due on it, the security and not the debt, that is the subject of the action." See, also, 6 Wait Actions and Def., p. 183; Hodges v. Lathrop, 1 Sandf. 46; Kellogg v. Fox, 45 Vt. 348.
The case of Laverty v. Snethen, 68 N.Y. 522 (23 Am. R. 184), cited by counsel for appellant, is not opposed to the above cases, but in harmony with them. In that case it was said: "The result of the authorities is that if the agent parts with the property, in a way or for a purpose not authorized, he is liable for a conversion, but if he parts with it in accordance with his authority, although at less price, or if he misapplies the avails, * * * he is not liable for a conversion of the property, but only in an action on the case for misconduct."
If a person, having authority from the owner to sell the property and apply the proceeds, sells the property, and misapplies or converts the proceeds, he is liable for such misapplication or conversion, but does not became a wrong-doer ab initio.
In the possession and sale of the property, appellee was in no way a wrong-doer, because he was acting under authority from appellant. His wrong, if he was in fact guilty of any wrong was in not applying the proceeds of the sale as directed, and that wrong was subsequent to the possession and sale. He is not, therefore, liable for having converted the property. As we...
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