Lewis v. Hoover

• Decision Date: 15 June 1829
• Citation: 24 Ky. 500
• Parties: Lewis v. Hoover.
• Court: Kentucky Court of Appeals

24 Ky. 500

Lewis v. Hoover.

Court of Appeals of Kentucky.

June 15, 1829

Detinue. Assumpsit. Trover. Contract. Bailment. New Trial. Affidavit.

APPEAL FROM THE JESSAMINE CIRCUIT; W. L. KELLY, JUDGE.

Haggin and Loughborough, for appellant.

OPINION

ROBERTSON JUDGE:

Statement of the facts.

This is an action of detinue by Hoover vs. Lewis, for a promissory note for $500 in commonwealth's paper.

It appears from the testimony embodied in a bill of exceptions that Hoover held a note on Lewis, for $500, payable in notes of the bank of the commonwealth; that Lewis had proposed to execute another note for $525, in the same kind of paper, in lieu of the $500 note with certain gentlemen as his securities, which Hoover agreed to accept, whenever it should be delivered to him with all the signatures; that Lewis signed the note for $525, and left it with Hoover, taking the note for $500 with him on a promise to procure the signature of the securities, to the other note. It was agreed, that if he did not cause the note for $525, to be fully executed within a specified time, he should return the note for $500. He failed to complete the execution of the note for $525, and then refused to surrender the other. Whereupon this suit was instituted to recover it

The jury on the general issue found a verdict for Hoover. Lewis made a motion for a new trial on an affidavit, which the court having overruled; judgment was rendered on the verdict for Hoover.

Verdict for plaintiff.

It is insisted here, that the action was not maintainable; and that if it were the court ought to have awarded a new trial, for the reasons stated in the affidavit.

There can be no doubt that an action of detinue will lie for a deed, note, or any other muniment of title or document of debt.

Detinue may be maintained for a deed, a note or writing, evidencing a debt, for any chattels which can be identified, to which the pl'tff has a right of property, and of immediate possession, no matter how the defendant obtained possession.

Has the plaintiff property in the thing? Has he a right to the immediate possession of it? Can it be identified? Is it in the possession of the defendant? These are the only inquiries which it is necessary to answer affirmatively, to entitle the plaintiff to maintain a suit, in detinue. If all these facts concur the plaintiff must succeed. They are all abundantly proved in this case. But it is suggested by the counsel for Lewis, that the action is misconceived. He insists that as Lewis obtained the possession of the note, with the assent of Hoover, and promised to return it on a certain contingency the only remedy for a breach of this contract, is assumpsit. There is no solidity in this argument. It is immaterial how Lewis obtained the possession, or for what purpose, if Hoover has a right to the note, and Lewis has no right, detinue may be sustained, and is the appropriate remedy for the restitution of the note.

" It lies...