Webster v. Heylman

• Decision Date: 31 March 1848
• Parties: WEBSTER v. HEYLMAN.
• Court: Missouri Supreme Court

11 Mo. 428

WEBSTER

v.HEYLMAN.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action of trover, brought by the appellee, for the use of James Galloway and E. F. Drake, at the September term, 1846, of the St. Louis Court of Common Pleas, for the recovery of a certain negotiable promissory note, made by Cottell & Davidson, payable to John Suydam and Joseph Williams, or order, for $140 22, drawing ten per cent. interest after maturity, and indorsed by said Suydam & Williams. The declaration alleges the note to be of the value of $200--that plaintiff lost and defendant found the same, &c., and that defendant refused, on request, to deliver the same to plaintiff. The defendant plead not guilty.

The court at the instance of the plaintiff, gave the following: “If the jury believe from the evidence that the note in question was delivered by plaintiff to defendant for a special purpose, after that purpose was answered, defendant had no right to keep it for another purpose; they must therefore find for the plaintiff, if they believe that defendant, after demand, refused to re-deliver the same.” And also, “If the jury find for plaintiff, they will assess the damages at the value of the note at the time the demand was made for the same, and calculate the interest thereon from that time to this.”

The defendant, Webster, then asked for the following instruction, which was given: “If the jury believe from the evidence that the note in question was put into the hands of defendant, Webster, and a loan obtained thereon, or that the same was hypothecated as collateral security for a loan of money, they must find for defendant, unless they believe such money has been repaid by Heylman to defendant.” No exception was taken to plaintiff's instructions. The jury found for the plaintiff the amount of the note and interest. Defendant then moved for a new trial for the following reasons: “The court erred in refusing to instruct the jury, when plaintiff had closed his case; that there was, on plaintiff's own showing, no sufficient title or property in him to enable him to maintain this action,” and “because the verdict was against law” and ““against evidence.” The motion for a new trial was overruled, and defendant excepted, &c.

LESLIE & LORD, for Appellant. The only question we propose to submit to the court is, whether this action was properly brought in the name of Heylman; and we argue that it was not, because Heylman had neither a general or special property in the note, but stood in the position of a mere agent or servant, and had voluntarily parted with the note. General property is where the goods belong absolutely to one. Special property is where a man holds the goods by bailment or has any temporary interest therein, either in his own right and for his own use, or by authority of law for legal purposes. Starkie's Ev., Phil. ed., 1837, p. 832; 1 Caine, 18; 2 Esp. 465; 7 Term R. 391; 12 Johns. 403; 1 Yeates, 19; 3 Serg. & Rawle, 512; 2 N. Hamp. R. 319; 7 Cowen, 294.

FISHER & GRAY, for Appellee.

1. Trover will lie for a negotiable promissory note or bill of exchange when it is detained contrary to the purpose for which it was delivered. Chitty on Bills (8th Am. from 8th Eng. ed.) 274; 1 Barn. & Ald. 528; 1 Salk. 130; 10 Johns. 172. 2. Heylman had sufficient interest in the noto to maintain trover. He had, at least, a right to its possession. He had given his receipt for it to Suydam & Williams, expressing that it was received for the benefit of Galloway & Drake. He was responsible for its safe-keeping, and the use of due diligence in its collection. He had had it in his possession. He would also, as trustee, be entitled to the usual commission allowed to trustees for their services. 7 Conn. R. 328; 13 Wend. 63; 5 Mass. 303; 2 N. Hamp. R. 319; 1 Haywood, 26. See also note, p. 102 in 9 Mass. R. 3. Webster has waived his right to complain of the refusal of the Court of Common Pleas to give the instruction first asked by him, by his subsequent abandonment of that point and submitting the case to the jury on the question of fact whether the money for which the note had been pledged had been repaid by Heylman to Webster, as will be seen by his last instruction asked and given. The first instruction asked by defendant was in fact, though not in form, a demurrer to the evidence. Tidd's Pr. 914. Had he formally demurred to the evidence, and his demurrer been overruled, there can be no doubt that, by afterwards taking issue upon the facts, he would have lost his right to assign for error the overruling of his demurrer. But the court should not regard the want of form. If it was a demurrer in fact, it should be so in effect. The record shows sufficiently clear what was done in the court below. The defendant, then, to have...