Graham v. Warner's ex's
| Decision Date | 02 June 1835 |
| Citation | 33 Ky. 146 |
| Parties | Graham <I>vs.</I> Warner's Executors. |
| Court | Kentucky Court of Appeals |
Mr Breck for Plaintiff: Mr. Anderson for defendant.
FROM THE CIRCUIT COURT FOR GARRARD COUNTY.
THIS was an action of trover, brought by the Executor's of Elijah Warner, against Graham, for the conversion of a note or covenant for the payment of sixty dollars in trade, to Warner. Issue was joined on the plea of not guilty; and the plaintiffs having proved, that when their agent presented the note for payment, the defendant got possession of it, and refused to give it up, — the defendant (as the bill of exceptions states) "produced several witnesses, and offered to prove that said note was fraudulently obtained from him, for a clock which was of no value, but the court refused defendant permission to give said testimony to the jury."
The question to be decided by this court, is, whether the evidence thus offered should have been admitted, and this question is resolved into two others, viz. First — does the matter offered to be proved, constitute an appropriate bar to the action of trover? Second — if it does, can it be given in evidence under the general issue, or must it be specially pleaded?
These questions are not free from difficulty. It seems to be anomalous to make the grounds and terms of a contract the principal subject of investigation in an action of trover. But it certainly would be no less so, if the defendant were prevented from relying upon any thing which tended to establish, either that the subject of the suit was not the property of the plaintiff; that the possession or conversion of it by the defendant, was not wrongful, or that the thing itself was of no value. The action of trover, by the obligee against the obligor, for the conversion of the obligation itself, is but an attempt to enforce a contract by an action for a tort; and if we throw out of view the manner in which the obligor may have become possesed of the written evidence of the contract, which in the action of trover is entirely immaterial, there seems to be no reason growing out of the form of proceeding, or the real merits of the controversy between the parties, which would preclude the defendant from showing, that the writing was wholly unobligatory; that as written evidence of an obligation, it was of no value to the plaintiff, or to any one but himself, and that in fact it ought to be in the possession of no other but himself.
If by reason of any fact intrinsically connected with the contract itself, it was rendered void in its beginning, or if it has become entirely extinct by matter ex post facto, so that it is not in reality the evidence of an existing obligation, while apparently it is so, the continued possession of it by the obligee, unless justified by some extrinsic consideration, is itself a wrong, or at least, an impropriety, against which a court of chancery affords relief, by ordering the instrument to be delivered up to the obligor, or cancelled. If the obligor, instead of resorting to a court of chancery to...
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