Hazelton v. Locke

• Decision Date: 23 April 1908
• Citation: 71 A. 661,104 Me. 164
• Parties: HAZELTON v. LOCKE.
• Court: Maine Supreme Court

71 A. 661

104 Me. 164

HAZELTON

v. LOCKE.

Supreme Judicial Court of Maine.

April 23, 1908.

(Official.)

Exceptions from Superior Court, Cumberland County.

Trover by Franklin H. Hazelton against Sperry H. Locke. A nonsuit was ordered, and plaintiff excepts. Exceptions overruled.

Action of trover for the alleged conversion of $51.13 "in lawful current money of the United States," brought in the superior court, Cumberland county. For pleadings the defendant filed the general issue, together with a "special plea," Interposing his discharge in bankruptcy as a defense. The case was heard before the justice of said superior court without the intervention of a jury. At the conclusion of the plaintiff's evidence, the justice ordered a nonsuit, and the plaintiff excepted. The specific defense presented by the "special plea" was that considered by the law court, but the case was decided on the questions raised by the general issue.

The case appears in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, STROUT, PEABODY, CORNISH, and KING, JJ.

Harvey D. Eaton, for plaintiff.

Llewellyn F. Hobbs, for defendant.

PEABODY, J. This was an action of trover for the conversion of $51.13 in the money of the United States. The writ was dated July 8, 1905.

The defendant's plea was the general issue and a brief statement setting out his discharge in bankruptcy under the bankruptcy act of 1898, and that the claim, demand, debt, or action declared on was provable against his estate from which he is discharged, not being excepted by said act.

The case was tried before the justice of the superior court for Cumberland county without the intervention of a jury.

At the conclusion of the plaintiff's evidence, upon motion of the defendant's attorney, the presiding justice ordered a nonsuit, to which ruling and action the plaintiff excepts, and the case is before this court upon the exceptions.

The following is a summary of the facts upon which the nonsuit was ordered:

The plaintiff and defendant entered into a written contract dated February 2, 1904, for transacting the business of canvassing for applications for life insurance in the Equitable Life Assurance Society of the United States, of which the plaintiff was manager for the state of Maine, upon certain specific terms, and conditions among which that the defendant was to receive commissions on the premiums under various forms of policies which were to accrue only as the premiums were paid to the plaintiff or the society in cash.

On January 10, 1905, the defendant received of George C. Fuller $51.13 in currency, consisting of bills and silver which was for the premium on a policy of insurance issued on the life of his wife by the Equitable Life Assurance Society on the 1st day of April, 1905. The attorney for the plaintiff called on the defendant and asked him for this sum of $51.13, also on two other occasions prior to the commencement of the action, and he declined and refused to deliver the same.

As we view the case, it is not necessary to consider the specific defense presented by the brief statement. The general issue raises the following questions:

1. The Nature of the Property as a Proper Subject of This Form of Action and the Sufficiency of its Description. As specified in the writ, the property was money in the currency of the United States, and the evidence is that it consisted of bills and silver amounting to $51.13. Legal currency may be the subject of an action of trover. There is nothing in the nature of money making it an improper subject of this form of action so long as it is capable of being identified, as when delivered at one time, by one act and in one mass (Burns v. Morris, 47 Tryw. R. 485; Royce, Allen & Co. v. Oakes, 20 R. I. 252, 38 Atl. 371; Walter v. Bennett, 16 N. Y. 220; Farrelly v. Hubbard, 148 N. Y. 592, 43 N. E. 65; Conaughty v. Nichols, 42 N. Y. 83; Vandelle v. Rohan, 30 Misc. Rep. 239, 73 N. Y. Supp. 285; Reeside's Executor v. Reeside, 49 Pa. 322, 88 Am. Dec. 503; Ringo v. Field, 6 Ark. 43; Wood v. Blauey, 107 Cal. 291, 40 Pac. 428; Michigan Carbon Works v. Schad, 49 Hun, 605, 1 N. Y. Supp. 490; Wallace v. Castle, 14 Hun [N. Y.] 106; Duguid v. Edwards, 50 Barb. [N. Y.] 288; G. T. R. R. Company v. Edwards, 56 Barb. [N. Y.] 408; Graves v. Dudley, 20 N. Y. 76), or when the deposit is special and the identical money is to be kept for the party making the deposit, or when wrongful possession of such property is obtained (Murphey v. Virgin, 47 Neb. 692, 66 N. W. 652; Donohue v. Henry, 4 E. D. Smith [N. Y.] 162; Coffin v. Anderson. 4 Blackf. [Ind.] 395). In Moody v. Keener, 7 Port. (Ala.) 218, it was held that in actions of tort only the same certainty is required as in indictments that it was not necessary to set out...