Royce v. Oakes

• Decision Date: 14 March 1898
• Citation: 20 R.I. 418,39 A. 758
• Parties: ROYCE et al. v. OAKES.
• Court: Rhode Island Supreme Court

39 A. 758

20 R.I. 418

ROYCE et al.

v. OAKES.

Supreme Court of Rhode Island.

March 14, 1898.

Trespass on the case by Royce, Allen & Co. against Charles H. Oakes. Demurrer to an amended count of the declaration sustained.

Irving Champlin, for plaintiffs.

Van Slyck & Mumford, for defendant.

TILLINGHAST, J. Since the rendition of the former opinion in this case, sustaining the demurrer to the second count in the declaration 20 R.I. —, 38 Atl. 371), the plaintiffs have amended said count so as to allege, in substance, that on the 15th day of January, 1894, they authorized and empowered the defendant, who was in their employ for hire, and acting as their agent and servant in this behalf, to collect and receive for them, from divers debtors of theirs, various sums of money, amounting, in all, to the sum of $1,714.60, and thereupon to deliver the same to the plaintiffs. And they aver that the defendant thereafter, in pursuance of said authority, collected said sum of money, and that thereupon it became his duty to pay over the same to the plaintiffs; but that not regarding his duty in that behalf, although duly requested, intending and contriving to injure and defraud the plaintiffs, he neglected and still neglects to pay said money to them. And the plaintiffs declare that said refusal was negligent, fraudulent, and in violation of his duty, and that by reason of the premises they are deprived of the possession and benefit of said money. To this amended count the defendant has demurred, on the grounds 1) that the cause of action, if any, set forth therein, is an action of contract, and not an action sounding in tort; and (2) that the injury alleged to have been suffered by plaintiffs has been suffered by reason of the commission of the crime of larceny, and that it does not appear that any criminal complaint has been made therefor.

We think the demurrer should be sustained on the first ground. The amended count differs from the former one, which we held amounted to a charge of embezzlement, in that it does not allege a fraudulent conversion of the money by the defendant to his own use, but simply alleges a breach of duty in not paying over the same to the plaintiffs after demand made therefor. In other words, when stripped of its formalities, it simply shows a case where a servant of agent has collected money for his principal and neglected to pay it over on demand,— that is, a case of money had and received by the defendant to the plaintiffs' use,— and hence the plaintiffs' remedy, and their only remedy, is by assumpsit or debt. It is true, as contended by plaintiffs' counsel, that the action of trespass on the case is an exceedingly broad and comprehensive form of action, and that it lies, in general, where a legal injury is suffered for which the common law has provided no adequate remedy. 26 Am. & Eng. Enc. Law, 699, and cases in note 5. But, in a case like the one set out in said count, the common law has provided an adequate remedy in an action of assumpsit; and to permit the plaintiffs to maintain their action of trespass on the case would, in effect, be to abolish the distinction between actions sounding in tort and those sounding in contract, and enable a plaintiff in any case, where money has been had and received by another to his use, to sue in a tort action for its recovery.

In Orton v. Butler, 2 Chit. 343, the same thing was attempted under a declaration the third count of which was nearly identical with the count row in question, except that there the plaintiff stated a stronger case by alleging a conversion of the money received, as the plaintiffs originally did in the case at bar. In sustaining the demurrer to the third count, Abbott, J., said: "The law has provided certain specific forms of action, suited to the recovery of damages, for certain peculiar injuries. We have a smaller variety of forms in our law than is to be found in the civil law. We have not many but it is of Importance that those we have should be preserved, and that parties should not be permitted, by their own invention, to convert that which from the earliest times has been considered as peculiarly the subject of assumpsit or debt into an action of tort. We are to look with jealousy at any innovation of that kind, so that nothing like a precedent shall be established, tending to destroy those sound distinctions which have been established by the wisdom of our ancestors." Best, J., added: "I am of the same opinion. This is a departure from all precedents; and, even if I were satisfied that it might not be attended with inconvenience, still I think we ought not to permit any innovation upon the ancient forms of proceeding, which are to be considered as part of the settled law of the land. As well might we alter the doctrine of descents as to freehold property, as alter the long-established forms prescribed for the recovery of debts. We are not at liberty to do so. There is a broad distinction between causes of action arising ex contractu and ex delicto. This is one arising ex contractu. There is no wrong stated, but merely a breach of contract; and the plaintiff is not at liberty to convert a mere matter of contract into a tort. The consequences of a departure from the ancient forms have been well pointed out in argument. In addition to those may be mentioned that, by altering the remedy, the defendant would be deprived of his plea of tender, and also of the advantage of paying money into court. But, if no such consequences were to follow, I think we ought to adhere to those ancient forms, which have been perfected by the wisdom of ages, and confirmed in their utility by the experience of many centuries."

It has never been understood by the bar in this state that a tort action could be maintained for money had and received, even though the person receiving the same has negligently and fraudulently refused to pay over the same to the person to whose use it was received, or has even converted it to his own use, except, at any rate, as provided by statute, after the commencement of a criminal prosecution. Gen. Laws R. I. c. 233, § 16. On the contrary, the understanding has always been that assumpsit and debt are the only actions that can be employed in such cases; and we think this position is clearly in accordance with the well-settled rules relating to common-law actions. The authorities cited by plaintiffs' counsel do not, in our judgment, sustain his position. The...