Joseph F. Tilden v. Benjamin B. Brown, 14 Vt. 164

The opinion of the court was delivered by Redfiekd, J. The great question in this case is, whether the plaintiff had any such vested interest in the check as will enable him to maintain an action for its conversion. For if the property in the check had vested in the plaintiff, there can be no doubt he can maintain trover against any one who wrongfully convertsit.

It is not the person who last had the manual custody of the paper, or he to whom the check or note is made payable, who is to maintain an action for its conversion, but he who was the legal owner and beneficially interested in the check, or the money secured by it. The person entitled to sue upon a bill, check, or note, may maintain the action, as trustee, for the benefit of the owner. But latter only can maintain trover for its conversion. The case of Kingman v. Pierce, 17 Mass. R. 247, is in point.

That was trover at the suit of the holder of a promissory note, who was owner also, but the note was not payable to him, nor does it appear that the note was negotiable, or, if it were, that it had been indorsed. The suit is against the maker of the note, who had obtained possession of it, as he claimed, by payment, but the court considered it no pay-payment, and sustained the action for the money secured by the note.

In this state, trover has often been maintained to recover for the conversón of the paper of a promissory note, after it had been paid, when of course it would be wholly unimportant to whom the note was payable, or into whose hands it had come, if he withheld it from the maker who had paid it. In the cases referred to, however, the note was in the hands of those who had been owners while it remained unpaid. Buck v. Kent, 3 Vt. R. 99. Eastman v. Potter, 4 Ib. 313. Pierce v. Gilson, 9 Ib. 216. The case of Clowes v. Hawley, 12 Johns.

R. 484, is that of a bond, not payable to the plaintiff, but assigned to him, and executed by the defendant, and which he detained from the plaintiff, who was entitled to it. The action was fully sustained. I shall take it for granted, then, that if the plaintiff was the owner of the check, whether it was made payable to him, or had been properly indorsed or not, he may maintain this action for its wrongful conversion. I will first advert, briefly, to some of the reasons urged why this action will not lie. The objection, that the check has not been properly negotiated to plaintiff, has been sufficiently answered.

An extensive class of cases is referred to in order to show that, on the sale of personal chattels, the title does not vest in the vendee so long as any thing remains to be done by the vendor. This proposition is undeniable, but cannot affect the present case, as here nothing more remained for the defendant to do. He had released his whole interest in the contract to the plaintiff. So far as he was bound to the post office department, for the fulfilment of the contract, he stood in relation of a surety to the plaintiff, merely.

The plaintiff was the owner of the contract, not only by purchase,, but he had entered upon its performance and had continued to fulfil it. It was his own business. The defendant was under no obligation to pay him one cent for his labor, nor did he guaranty that the government should. If they could be supposed to have become bankrupt, or to have refused to fulfil their contract, the plaintiff would have suffered the loss. But it is said the check not being in esse at the time of the contract, nothing could pass until it was formally delivered by the defendant.

This is true, in those cases where the right to the thing rests merely in contract, and the thing itself is to be procured by the obligor, and, not being specifically designated, remains at his risk until delivered; as in the case of Mucklow v. Mangles, 1 Taunton, 318, where the court considered that no particular barge was designated, and therefore it was a mere contract to deliver a barge. But in the case of Woods v.

Russell, 5 B. & A. 942, a more recent and well considered case, where the bankrupt contracted to build a ship of .a given description, and the defendant paid the price by instalments, as the work progressed, it was held that the title of the ship vested in him, and for taking it away he was held liable only for the balance of the price. This is the general rule in regard to all manufactured articles, made to order. The title vests in the vendee when the

article is finished, subject to the vendor’s lien for the price. So, too, in all cases of sale of personal chattels, when the contract is complete, and the price, or earnest, paid, as between the parties, the title passes without delivery. And this is especially the case where not only the vendor has done all which he is tof do, and the full price is paid, but the very chattel, or thing, is produced by the labor of the vendee.

If one contracted to sell a manufactured article, to be made at the vendor’s shop, (and of his stock, if you please,) but by the labor of the vendee, or the increase of stock, and in the mean time the vendee to keep the stock, can it be supposed that, in either case, any formal delivery would become necessary in order to pass the title. The very supposition is almost too bold a proposition for grave argument, when it is remembered that the price is paid in advance.

But if it were necessary, in the present case, to show a formal delivery, even, it seems to me that the order to the post-master at Middlebury to forward all communications Rom the post-office department, addressed to defendant, to the plaintiff, was equivalent to a delivery. The post-master was thereby constituted the mutual agent of the parties, to be the conduit, in whom and by whom this should be effected. When the check came into his hands, it was as much in the possession of the plaintiff as if he had obtained the manual custody of the paper, whether it were enclosed in a letter, or not.

Under this state of the case, had the plaintiff, instead of the defendant, taken possession of the check, even after the order to the post-master had been, in terms, countermanded, will it be seriously argued that the defendant might have maintained trover for it? Yet this is but a necessary consequence of the proposition which is contended for on the part of the defendant. And, in this view of the subject, the defendant might now maintain trover for all the checks which the plaintiff has taken from the office since these counter orders were given to the post-master.

But it must be obvious, I think, that this order, given to the post-master at Middlebury, was a power coupled with an interest in the plaintiff, and in no sense countermand-able. It is a familiar principle of the law that any power, which is given upon consideration, or, which is the same thing, when the appointee, or he for whose benefit the power is conferred, foregoes some advantage in order to induce the giving of the power, or places himself in a different position from what he otherwise would, the power thereby becomes irrevocable. That is precisely this case.

This power of retaining the checks for the plaintiff was given to the postmaster for the indemnity of the plaintiff against loss. It might have been, and, from what appears in the case, very likely was, an important consideration in the contract. The contract was entire, and is no longer executory, having been executed by both parties, neither party retaining or having any power to rescind it. Can it, then, with any show of sound reasoning, be argued that the order to the post-master was countermandable at pleasure ? Surely not.

The check, then, in every view of the subject, being the property of the plaintiff, either with the actual possession by the his servant, or the right to immediate possession, which is same thing, he may well maintain this action for the money secured by it.

The case is much the same as if the plaintiff had originally taken out the contract in the name of- the defendant, by his consent, (which is not an uncommon case in these matters, I apprehend, in order to secure the good will and credit of a former contractor,) but with,the understanding, that he, in whose name the contract stood at the department, should have no interest or concern in it, except perhaps to receive a bonus for his countenance and good will.

Under this state of facts,yve may suppose one of the quarterly checks to come into the hands of the nominal contractor, and he having some just, or simulated, claim against the real contractor, puts the check to his own use, and gravely insists either that he will not be sued at all, or, at all events, not in the form of an action of trover. We could only consider him as holding the check merely in the capacity of a trustee for the person whom he had permitted to use his name. He would be in effect a mere depositary.

The money, when obtained, would be that of the real contractor, and he could maintain trover for it. The present case is precisely the same in principle. The plaintiff may maintain trover for the money even, so long as he can identify it. Jackson, et al. v. Anderson, 4 Taunt. 24; which was trover for 1900 (spanish-milled) dollars. So, too, where the trustee has wrongfully converted the trust money into other property, the owner of the money shall have trover for the property purchased with it, as long as he can trace it. Taylor v.

Plumer, 3 M. & S. 561, which was where a bankrupt had wrongfully converted money, given him to buy exchequer bills, into American stocks. The plaintiff was allowed to maintain trover against the assignees for the avails of the stocks purchased thus wrongfully with his money.

In pronouncing judgment in the case, Lord Ellenborough, well says, ‘ An abuse of trust can confer no ‘ rights on the party abusing it, nor on those who claim in ‘privity with him. — The doctrine,'that the property in the ‘ thing ceases when it is tortiously converted into another ‘ form, is mischievous in itself and supported by no authority ‘ of law.’ In every view, then, which we can take of this case, we think it clearly maintainable, either for the check, or the money. We are the more reconciled, not to say gratified, at this result, from the consideration that it does meet the obvious equity of the case.

There can be no doubt the parties, at the time of entering into the contract, did expect the same consequences to follow from the contract, which we have now sought out and applied. There can be little doubt that the suggestion, at the time, of a contrary result, would have either broken off the negotiation, or have induced a resort to other forms of effecting the desired object. This is fairly inferable from the very great pains which were taken to exclude the defendant from retaining any possible control of the quarterly checks.

It is- the basis and the only legitimate object of all rules of eonstruction, to make contracts speak the sense of the parties. If this result is secured, courts need not feel alarmed by any foreboding, or prognostication, even, of the fearful calamity which may be expected to befal either the principles1 or the forms of the law. I know it is difficult always to steer evenly between the extremes of disregarding the particular equity of a case, on the one hand, or the settled rules and formulas of the law, on the other. Neither should ever be lost sight of.

Both are important; and, in a clear case, no doubt the particular equity should yield to established precedent and principle. But in a wise, judicious, and cautions administration of the law, it is believed these conflicts will be found much fewer than is sometimes apprehended. It is the great boast of our law that its forms may, without violence, be so moulded, as to meet the absolute justice of all cases. Here is a controversy about something more, I apprehend, than the mere form of the action.

For if trover cannot be maintained, it is because the money realized was not the money of the plaintiff, and if not the money of the plaintiff, then whose wasit? Surely the defendant’s. He of course cannot then be liable for this same money, in general indebitatus assumpsit, for money had and received. If he is liable at all, it must be upon his contract. This provides for no such contingency, for the best of all reasons, that the parties did not so understand the matter. The contract provides no more indemnity against the defendant taking these checks, than against his taking the horses, or carriages..

The result is, if we deny this remedy, we do either deny all redress, or turn the plaintiff over to a remedy which the parties never intended, and, by consquence, did not provide for.

Hence, if this case were even doubtful, in regard to the-form of redress, which it is not, I should be more inclined to take the view which conforms to the right and justice of the particular case, and the intentions and expectations of the parties, in regard to the contract, than one which violates both these, in pursuit of some distant anology, to some, perhaps, more questionable precedent, than the very case under consideration would make.

When cases are decided with a leading reference to their justice, it generally turns out, when they come to be analyzed fully, that they are in conformity with the just principles of the law, and fully reducible to its most approved formulas. And not a few of those cases where the acknowledged equity of the cause has been sacrificed to some supposed regard to precedent, or to principle, even, when they come to be subjected to the severer scrutiny of time, have been found to have violated both precedent and principle.

Hence I always feel safer, in a point which to my mind seems doubtful, to regard more the justice of the case than any nice and uncertain analogy, trusting to other minds to see the reason for what I feel to be just. But, in the present case, I could not esteem it even doubtful whether the judgment now declared is in conformity with the established forms and precedents, were it not that two members of this court, who have twice heard the argument at the bar, either hesitate, or dissent from this judgment, which is but the opinion of three of the members of the court. Judgment reversed and new trial.