Pilkington v. Trigg

• Decision Date: 31 January 1859
• Citation: 28 Mo. 95
• Parties: PILKINGTON, Appellant, v. TRIGG & PHILLIPS, Respondents.
• Court: Missouri Supreme Court

28 Mo. 95

PILKINGTON, Appellant,

v.TRIGG & PHILLIPS, Respondents.

Supreme Court of Missouri.

January Term, 1859.

1. To maintain an action for the possession of specific personal property, the plaintiff must be the owner, or be entitled to the possession, of the specific property claimed.

2. A. purchased certain property of B. and gave to the latter in payment therefor drafts on St. Louis; these drafts B. delivered to C., a banker, for collection; C. received payment of the same and placed the amount collected to the credit of B. Held, that A. could not, in an action for the recovery of specific personal property, recover the amount so collected by C. on the ground that he had been induced to make said purchase by fraudulent representations on the part of B.; nor could such an action be maintained, although C. should, after its commencement, separate from the general mass of moneys in his possession the amount so collected for B. and should place the same in a bag marked “A. or B.”

Error to Cooper Court of Common Pleas.

Stephens & Vest and Jewett, for appellant.

I. The drafts having been obtained by fraud their transfer by Pilkington passed no title to Phillips, and Pilkington could recover their proceeds so long as they could be identified, no matter how many changes they might undergo. (1 Mo. 46; 26 Mo. 494; Story's Eq. § 437, 439, 513, 1256; 5 Dana, 196.) The plaintiff instituted the proper form of action. Our statute providing for the claim and delivery of personal property is intended as a substitute for the common law remedies of detainer, replevin and trover; and when these actions could be maintained the statutory action like the present can also be had. (See 5 How. Pract. Rep. 327; Voorhies, N. Y. Code, 152 and note; 1 Chit. Pl. 166; 17 Mass. 606; 23 Maine, 196; R. C. 1855, 1242.) It can not affect plaintiff's right of action to grant that the money ($950) was placed in a bag and marked as stated in the amended petition since the service of the writ. Plaintiff had a right under the new practice to file an amended or supplemental petition setting up new facts or praying for a new or different relief from that asked in his first petition. (R. C. 1855, p. 1253; 8 How. Pract. Rep. 48; 9 Id. 140; 3 How. Pract. Rep. 378.) In this case, after the amended petition was filed, the defendants answered denying its allegations, and went to trial upon this issue. They made no motion to strike out the allegation of facts since the commencement of the suit, but go to trial upon them. The evidence as spread upon the record establishes beyond all doubt a case of gross fraud on the part of Phillips in the sale of the book to Pilkington. The sale being void on account of fraud, if the notes or drafts given for the book had existed at the commencement of this suit in the hands of Trigg, the plaintiff would have been entitled to them on disaffirming the sale. Plaintiff being entitled to the notes or drafts, may pursue them through every mutation, or claim the property for which they were exchanged, or the proceeds when the property is irreclaimable, so long as the property or the proceeds remain in the hands of parties not bona fide purchasers, who have paid over the consideration. (DeVoise v. Sandford, 1 Hoffm. Ch. 192; 2 Story Com. on Eq. § 1232.) The moment Trigg was notified by plaintiff that the sale was rescinded on account of fraud, he, as also Phillips, became mere trustees or stakeholders for the benefit of plaintiff. (2 Story Eq. § 1265.) The evidence showing that at the commencement of the suit Trigg had the proceeds of the notes in his hands, having set apart a certain sum and marked it as the proceeds of said note, it is conclusive on the defendants that the sum so marked is the identical money received for the note.

Adams, for respondents.

I. This record presents the strange anomaly of a suit for a specific chattel, in the shape of a bag of gold conceived and brought forth into existence long after the commencement of the suit. This progeny, created after leave was given to file an amended petition, was a mere abstraction, and was not and could not form the subject of this litigation. How could a debt due from Trigg to Phillips be converted into a specific chattel in the shape of a bag of gold, without the knowledge or consent of the creditor, and be substituted as the cause of action? The bag of gold is still the property of Trigg and the debt from Trigg to Phillips still remains unpaid. No evidence was offered or given that...