Andrews vs. Bond, 16 Barb. 633

By the Court. Johnson, J. The action is for an alleged tort, in the conversion of a negotiable promissory note. The complaint alleges a transfer of the note to the plaintiff on the 2d day of April, 1850, and a demand by the plaintiff and refusal to deliver by the defendant on the 20th September, 1850. The only evidence of the transfer of the note to the plaintiff is the order of Aylesworth, to whose order the note was alleged to be payable, dated the 2d April, 1850.

It is doubtful, I think, whether this order by Aylesworth to deliver the note to the plaintiff was sufficient evidence, of the transfer of the title of the note to the latter, without any delivery. But assuming it to be sufficient, there are still insurmountable obstacles in the way of the plaintiff’s recovery in this action. The order alleges that the note was endorsed by Aylesworth and delivered by him to the defendant in June or July, 1849; that it was dated the 13th June, 1849, and payable in ninety days from its date.

The acceptance of this order by the defendant amounts to an admission by him that the statements therein, in relation to the note are true, and that Aylesworth had the right to control the note, as against him, the defendant, and also to a promise or agreement to surrender the note to the plaintiff. But the order also proves that the note was indorsed and delivered to the defendant, and that he became and was the lawful holder and was thus placed in a situation to enable him to negotiate the note and transfer the legal title thereto to any bona fide transferree.

The proof, about which there is no contradiction, then shows that on the 6th of July, 1849, the note, was negotiated at the Bank of Dansville by the defendant, and the money advanced by the bank upon it, and that the maker subsequently paid the note. The evidence does not show the precise date at which the note was paid. The proof is merely that the note was paid by the maker subsequent to the transfer to the bank, and in the absence of all proof to the contrary, I apprehend the presumption is that it was paid when it fell due.

This being so, there was no note in existence at the date of the order under which the plaintiff claims title, and consequently he never could have acquired any title to it. But if the presumption under the evidence were otherwise, and that the note was still in existence as a subsisting obligation at the date of the order, it does not aid the plaintiff. It is clear that the.defendant had transferred the note long before, to the bank, which thereby acquired a valid title to it, • even against Aylesworth and all persons claiming under him. Aylesworth, at the date of the order, had no title which he could convey.

The lawful possession of the note by the defendant, of itself, operated as a full authority to him, so far as' innocent third persons were concerned, to negotiate and transfer all right and title to the instrument. The defendant had, in fact, transferred it, and Aylesworth’s title was gone. And although Aylesworth might have maintained the action in this form, against the defendant, if the latter had in fact no right to transfer the note as between them, it does not follow that it can be maintained by the plaintiff.

His right to maintain the action rests exclusively upon his title and right of possession to the note, and if there was no such note in existence, or if Aylesworth clearly had no title to it, if it had been in existence, at the date of the alleged transfer, the plaintiff acquired no right or title, and his action must fail. The defendant may have converted the property of Aylesworth and not that of the plaintiff. Had the property in question been something other than a negotiable instrument, the defendant could not, without some authority, have transferred Aylesworth’s title, had he undertaken to do so.

The title of the original owner still remains in him, notwithstanding a wrongful conversion, and he may after such conversion transfer a good title to a third person, at any time before judgment and satisfaction for the wrong. And such third person upon demand and refusal may maintain the action against the person in possession of the thing thus refusing, because there is a conversion of his property. (Robinson v. Weeks, 6 Howard Pr.

Rep. 161.) But the rule is necessarily different in regard to negotiable instruments, where the law adjudges that the possessor has the right to transfer the title to the bona fide indorsee or bearer. It is insisted by the plaintiff’s counsel that the defendant having accepted the order, admitted that the note was not only in existence but under his control, and promised to deliver it, and that he is now estopped from setting up that the note was then extinguished. But the principle of estoppel does not apply.

It does not appear that the plaintiff parted with any thing or took any step by which he will be liable to be injured, on the faith of the acceptance. This the plaintiff was bound to show before he could preclude his adversary from alleging the truth. It is also contended on behalf of the plaintiff, that the defendant could not under the general denial of the facts alleged in the complaint, set up the prior transfer and payment of the note.

Under a denial of the allegations in the complaint, the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain his action. Here it was essential for the plaintiff to make out a title or right to the possession of the note, and the evidence objected to went directly to controvert the plaintiff’s title. It is also suggested by the plaintiff’s counsel that this may be regarded as an action to recover the avails of the note as money had and received, and the power to amend the complaint is invoked, if necessary.

But we cannot fail to see from the pleadings that it is clearly an action sounding in tort, and that it was commenced and tried as such, and it is too late now for the plaintiff to attempt to change its character. We cannot know what defense the defendant might have interposed had the action been founded upon the assumpsit.

The code has neither obliterated nor obscured the broad and fundamental distinction between tort and assumpsit, and it would be dangerous in the extreme, and a reproach upon the administration of justice, to allow the entire character of the action to be changed now, and to determine the rights of the parties upon the evidence before us, when by such change their rights must obviously depend upon questions which have never been tried or even put in issue.

It is far better that the plaintiff should suffer the consequences of his mistake in the form of his action, than that justice should be meted out by a standard so uncertain, or rather without any standard whatever. [Monroe General Term, December 5, 1853. Welles, Johnson and T. R. Strong, Justices.] The judgment of the special term was clearly right, and a new trial must be denied.