Muzzy v. Rockingham County Trust Co.

Decision Date28 September 1973
Docket NumberNo. 6546,6546
Citation309 A.2d 893,113 N.H. 520
Parties, 13 UCC Rep.Serv. 630 Mary L. MUZZY v. ROCKINGHAM COUNTY TRUST COMPANY.
CourtNew Hampshire Supreme Court

Robert Shaw, Exeter, Joseph A. Lowther, East Kingston, for plaintiff.

Soule & Leslie, Salem (Lewis F. Soule, Salem, orally), for defendant.

KENISON, Chief Justice.

The principal issue in this case is whether the trial court properly granted the defendant's motion for nonsuit in an action to recover damages for the alleged conversion by the defendant bank by its retention of certain stock certificates belonging to the plaintiff. The standard of review is whether the evidence and all reasonable inferences therefrom, construed most favorably to the plaintiff, would permit a jury to find in her favor. Scott v. J. J. Brady & Sons, Inc., 113 N.H. 65, 67, 302 A.2d 108, 109 (1973); Dubreuil v. Dubreuil, 107 N.H. 519, 520, 229 A.2d 338, 339 (1967).

The basic facts are not in dispute. On or about June 20, 1969, a house was conveyed to the plaintiff by her husband during a period when his business was financially insecure. The conveyance was subject to a purchase and sale agreement, signed by both the plaintiff and her husband, to sell the house to a third party in July of 1969. On June 26, 1969, the plaintiff and her husband jointly executed a 90-day note for $5000 to the defendant bank for the purpose of assisting the husband in his business. They deposited, as collateral, certificates of various common stocks, most of which were owned by the plaintiff, but some held jointly with her husband. On Friday, July 18, 1969, the plaintiff received a draft payable to both her and her husband in the amount of approximately $5442 for the sale of the house. On the same day, after endorsing the name of her husband on the back of the draft without his authorization, the plaintiff endorsed her own name, went to an official of the defendant bank and tendered the draft for the purpose of discharging the note. The official accepted the draft in the belief that the husband's endorsement was proper and indicated that the note would be discharged despite the prematurity in payment. Since the amount of the draft was in excess of that due on the note, arrangements were made for the disposition of the excess. The parties agreed that the stock certificates would be returned on the following Monday because it was deemed prudent to leave them in the bank vault over the weekend. Later on July 18 the plaintiff's husband learned of the unauthorized endorsement and called the official in the bank, stating that he had not endorsed the draft. On the following Monday the defendant bank delivered the draft containing the plaintiff's endorsement to her husband, who apparently negotiated the instrument for his own purposes. The defendant bank then informed the plaintiff that it had refused to accept the draft in the discharge of the debt and continued to hold the stock certificates as collateral.

After the plaintiff and her husband failed to pay the note when it became due, the defendant bank brought separate actions on the note against them. The plaintiff sued the defendant bank in the present action, claiming that she, as owner of her home, was exclusively entitled to the draft representing the proceeds of the sale. The bank in turn brought a third party action against the plaintiff's husband. The four actions were consolidated and tried by jury. After the presentation of the plaintiff's evidence, the trial court granted the defendant's motion for nonsuit in the present action and a motion for directed verdict by the plaintiff's husband in the third party action. The husband admitted liability on the note, and the trial court directed a verdict in favor of the bank. The jury found for the plaintiff in the action against her on the note, thus relieving her of responsibility. The plaintiff's exception to the granting of the motion for nonsuit was reserved and transferred by Mullavey, J.

Conversion is an intentional exercise of dominion or control over a...

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33 cases
  • Curtis Mfg. Co., Inc. v. Plasti-Clip Corp.
    • United States
    • U.S. District Court — District of New Hampshire
    • November 21, 1994
    ...LFC Leasing & Fin. Corp. v. Ashuelot Nat'l Bank, 120 N.H. 638, 640, 419 A.2d 1120, 1121 (1980) (quoting Muzzy v. Rockingham County Trust Co., 113 N.H. 520, 523, 309 A.2d 893, 894 (1973)); see also RESTATEMENT (SECOND) OF TORTS § 222A(a) Chattels subject to conversion can be classified as ei......
  • Lumber Ins. Companies, Inc. v. Allen
    • United States
    • U.S. District Court — District of New Hampshire
    • May 5, 1993
    ...Groveton Papers Co., 112 N.H. 50, 54, 289 A.2d 68 (1972); Titan Holdings Syndicate, Inc., 898 F.2d at 272; Muzzy v. Rockingham County Trust Co., 113 N.H. 520, 523, 309 A.2d 893 (1973). Accordingly, Lumber contends that I should disregard the Moores' attempt to characterize Count I as a negl......
  • Kenerson v. F.D.I.C.
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 16, 1994
    ...some explicit showing to the contrary, authority of a co-payee to receive a check seems apparent. Cf. Muzzy v. Rockingham County Trust Co., 113 N.H. 520, 523-24, 309 A.2d 893, 895 (1973) (holding bank's delivery to husband of draft payable to husband and to wife together not actionable by w......
  • Askenaizer v. Moate
    • United States
    • U.S. District Court — District of New Hampshire
    • June 4, 2009
    ...his intent to assert a right in fact inconsistent with the other's right of control, and his good faith."6 Muzzy v. Rockingham County Trust Co., 113 N.H. 520, 523, 309 A.2d 893 (1973) (citing Restatement Second of Torts § 222A(2)); Lane v. Camire, 126 N.H. 344, 345, 493 A.2d 1125 (1985) (re......
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