Royce v. Oakes

• Decision Date: 01 October 1897
• Citation: 38 A. 371,20 R.I. 252
• Parties: ROYCE et al. v. OAKES.
• Court: Rhode Island Supreme Court

38 A. 371

20 R.I. 252

ROYCE et al.

v. OAKES.

Supreme Court of Rhode Island.

Oct. 1, 1897.

Trespass on the case by Royce, Allen & Co. against Charles H. Oakes. On defendant's demurrer to declaration. Overruled as to first count, and sustained as to second count.

Irving Champlin, for plaintiffs.

Van Slyck & Mumford, for defendant.

TILLINGHAST, J. This is an action of trespass on the case, in which the plaintiffs set out in the first count of their declaration that on the 15th day of January, 1894, they delivered to the defendant the sum of $1,714.60 in money, together with three gross of napkin rings, of the value of $49.26 (said money and goods being the property of the plaintiffs), for safe-keeping, and to be redelivered by the defendant to the plaintiffs thereafterwards on the same day; that the defendant received said money and merchandise for the purpose aforesaid, yet, not regarding his duty in that behalf, afterwards, on the same day, intending and contriving to injure the plaintiffs, fraudulently and unlawfully converted said money and goods to his own use, and, although thereafterwards duly requested, he neglected and refused to deliver said money and goods, or any part thereof, to the plaintiffs. The second count of the declaration sets out that on the 15th day of January, 1894, the plaintiffs autnorized the defendant to collect and receive for them the sum of $1,714.60 in money, and also certain goods and chattels, to wit, three gross of napkin rings, from divers persons, and thereupon to render and deliver the same to the plaintiffs; said goods, chattels, and money then and there of right appertaining to the plaintiffs. And the plaintiffs aver that the defendant, pursuant to said authority, thereafterwards, on the same day, collected and received said money and said merchandise for the plaintiffs, yet that the said defendant, not regarding his duty in that behalf, although thereunto requested, neglected and refused to render and deliver to the plaintiffs said money and goods, but then and there fraudulently and unlawfully converted the same to his own use, by expending or dissipating the same, or otherwise disposing thereof contrary to law. To the first count of the declaration the defendant demurs on the grounds (1) that the matters therein stated do not set forth a cause of action against the defendant; (2) that, whereas said action is trespass on the case, said count states no cause of action against the defendant, unless the same be an action for breach of contract; (3) that said count does not state facts constituting an action of trespass on the case against the defendant, but, if any cause of action sounding in tort. is therein stated, the same is an action of trover, and not trespass on the case; and (4) that said plaintiffs join a cause of action for breach of contract with a cause of action sounding in tort. The defendant also demurs to the second count of the declaration on the same grounds.

We think the demurrer to the first count should be overruled; for, while it is somewhat inartificially drawn, yet it sufficiently states a case in trover, which is a species of action on the case. It sets out...