Duffield v. Miller

• Decision Date: 05 January 1880
• Citation: 92 Pa. 286
• Parties: Duffield et al. <I>versus</I> Miller.
• Court: Pennsylvania Supreme Court

92 Pa. 286

Duffield et al. versus Miller.

Supreme Court of Pennsylvania.

November 24, 1879.

January 5, 1880.

November 24th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent

Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 241 D. C. McCoy, F. B. Guthrie and F. L. Seely, for plaintiffs in error.—We contend that the contract between the parties constituted a loan of the bonds from Miller to the defendants; that a failure to return the bonds under the terms of the contract was but the violation of a contract for which Miller might, in a proper form of action, recover against the defendants; but that it was not a tortious breach of the contract, for which the action of trover will lie.

Miller had parted with the bonds for a specific time and purpose, and at the time they were sold had neither an actual or constructive possession thereof, nor was he entitled to the immediate possession, and therefore cannot maintain trover: Mather v. Trinity Church, 3 S. & R. 512; Purdy v. McCullough, 3 Barr 466; Castor v. McShaffery, 12 Wright 437; Hilliard on Torts 592 and 693; Kelsey v. Griswold, 6 Barb. 436; Gordon v. Harper, 7 Term Rep. 9; Horsefield v. Cost, 3 Alden's Condensed Rep. 427-28.

John J. Henderson, for defendant in error.—Admitting that the plaintiff might have sued on the contract, he also has a right to this action. A bailor may maintain trover against a bailee, if conversion is proved, though assumpsit or case may also be maintained: Lockwood v. Bull, 1 Cowen 322; Murray v. Burling, 10 Johns. 175. It is often desirable to sue in trover, rather than in assumpsit: 1 Saund. Pl. 167. The defendants had no right to make any disposition of the bonds, which would deprive the plaintiff of them. They were bound to protect his title, and any other use of them than that contemplated, was a conversion: Work v. Bennett, 20 P. F. Smith 484; Homer v. Thwing, 3 Pick. 492; Wheelock v. Wheelwright, 5 Mass. 104; Green v. Sperry, 16 Vt. 390. Every assumption of property in, or exercise of authority over the goods of another, inconsistent with the title of the rightful owner, or in exclusion of his right is a conversion: Commonwealth v. Chathams, 14 Wright 181; Bristol v. Burt, 7 Johns. 254; Murray v. Burling, 10 Id. 175; Baldwin v. Cole, 6 Mod. 212; Work v. Bennett, 20 P. F. Smith 484. If, after the party has received goods, though legally, he sell or otherwise dispose of them tortiously, no demand is necessary, for his subsequent act is in itself a conversion: 1 Chitty 158; Grant v. King, 14 Vt. 367; Work v. Bennett, 20 P. F. Smith 484; Neiler & Warren v. Kelly, 19 Id. 403.

Mr. Justice PAXSON delivered the opinion of the court, January 5th 1880.

The defendant's first point goes to the bottom of this case. It denies the right of the plaintiff to recover in this form of action. The court below denied the point as applied to the facts, and ruled that the plaintiff had a right to sue in trover.

The action was brought to recover damages for the conversion of $9000 of United States bonds. The defendant Duffield was the cashier of the Titusville Savings Bank, an unincorporated association. The other defendants were shareholders. The plaintiff had made a special deposit of the bonds in question with the bank. The latter, becoming embarrassed, entered into negotiations with the plaintiff for the use of his bonds to assist it in raising money which resulted in the following agreement:

                                           "Titusville, Pa., October 10th 1878
                

Received from Robert Miller nine thousand dollars in United States bonds, which we hereby agree to return to the said Miller within sixty days from this date. And we hereby jointly and severally bind ourselves for the faithful performance of this agreement. Witness our hands and seals."

This agreement was signed by each of the defendants. The defendant Duffield took the bonds to New York and deposited them with the Importers' and Traders' Bank as collateral, in consideration of which the latter bank allowed the Titusville Bank to overdraw its account to the value of the bonds. The account not being made good, the...