Badger v. Hatch

Barrows, J.

The testimony introduced on the part of the-plaintiff tends to show that she was the owner of the two hundred' dollar note, for the value of which she here sues in trover, having-given to the maker in exchange for it her- own note of the same date and for the same amount secured by mortgage; and that,, after indorsing it, she placed it, on the day of its date, in the-hands of the defendant [who was counsel for her husband in a contemplated suit for divorce against herself], in pursuance of a written agreement drawn by the defendant and subscribed by the plaintiff and her husband March 8, 1879, setting forth that in-case the husband obtained a divorce from her within a year from *564 ' that time she was to pay Mm " $200 without interest, in full satisfaction for all claims for labor or otherwise that lie may have ; against her; . . . and a note for said amount given by •'George H. Kingsley to said Abbie [plaintiff], and by her indorsed ‘is hereby deposited with M. P. Hatch [defendant], to be by him ■ delivered to [the husband] when such divorce is decreed, less •accrued interest or that amount in cash.” Then follow other ¡ stipulations as to certain articles of personal property which the ¡husband was to have, and as to the custody and support of their ■child. It further appears from the testimony of the plaintiff and .Kingsley that the defendant was cognizant of an agreement "between them made at the time of the exchange of notes in his jpresence, that if the husband failed to procure a divorce her note ••was to be paid by delivering up Kingsley’s to him.

The husband did not get the divorce here spoken of; but the ■plaintiff procured a divorce from him op her own libel in the following September.

Notwithstanding this it would seem that the defendant transferred the note to one of the banks in Waterville, whose cashier ■ called on Kingsley to pay it, which he did, and thereupon, November 3, 1879, this suit was brought by the plaintiff, charging in the ■ usual form that the defendant had converted the note to his own tuse.

"The points made by the defendant will not bear examination.

Unlike the note which was the subject of controversy in Morrill v. Goodenow, 65 Maine, 178, cited by defendant, Kingsley’s note to the plaintiff was for a valid consideration. 'The case cited has no bearing whatever upon the one before us.

Nor is there any evidence to show that Kingsley knew or ■ supposed that the note he gave was to be appropriated in any ■ event for any improper purpose.

Counsel on both sides seem disposed to assume that the object •of the agreement in pursuance of which the note was deposited with the defendant, was to promote the procurement of a divorce <of the husband from the wife by collusion, apparently forgetting that even if this were the fact and the condition of the agreement had been performed, neither the husband nor the wife nor any *565 one in privity with them would be permitted thus to impeach or attack the judgment in the divorce suit collaterally in any subsequent litigation between them. Davis v. Davis, 61 Maine, 395.

But there is nothing in the agreement itself, or in the testimony, which would warrant a finding that its object was the fraudulent procurement of a divorce by collusion. The presumption is that it was honest and lawful, and apparently it relates only to topics about which it was competent for parties, situated as that husband and wife were, to contract, subject to the revision and approval of the court. Burnett v. Paine, 62 Maine, 122; Blake v. Blake, 64 Maine, 177. Defendant was plaintiff’s bailee with power to dispose of the note [so far as appears,] only in a particular manner and upon a certain condition ; but the fair inference from the testimony is that he did dispose of it when the condition had not been performed, and in a manner not authorized by the agreement upon which he received it. Was this a conversion? It was not necessary to show that the defendant had appropriated the money for the note to his own personal benefit and advantage.

Conversion is well defined as consisting " in the exercise of dominion and control over property inconsistent with and in defiance of the rights of the true owner or party having the right of possession.” Fuller v. Tabor, 39 Maine, 519.

The defendant had no right to do anything with the note except in conformity with the terms of the agreement, or by the consent of the owner. "If the bailee uses the property bailed for purposes variant from those for which by the contract of bailment they were to be used, this constitutes a conversion, and trover is maintainable therefor.” Crocker v. Gullifer, 44 Maine, 491. And such tortious use puts an end to the bailment and the bailee’s right of possession, and the general owner may maintain trover forthwith -without a demand. Grant v. King, 14 Vt. 367 ; Melody v. Chandler, 12 Maine, 282; Hill v. Freeman, 3 Cush. 257 .

The indorsement of the note by the plaintiff would not pass. the title unless followed by a delivery with that intent.. But *566 here tbe delivery was for a specific purpose, and tbe power of tbe defendant to deliver to tbe husband was coupled with conditions that bave not been performed. Tbe defendant was not bailee with power to collect tbe note and dispose of its proceeds, but only to deliver it to tbe husband when tbe conditions bad been performed. Nor did tbe fact that tbe plaintiff procured a divorce from her husband of itself enlarge tbe defendant’s power over tbe note.

Nor can tbe further fact that tbe plaintiff bad employed tbe defendant as a scrivener to write a mortgage, and owed him a dollar therefor, justify tbe conversion of a note which be held under a special bailment for defined purposes with limited powers, nor defeat nor suspend her right of action therefor. According to tbe stipulations of tbe parties in tbe report, Oase to stand for trial.

AppletoN, C. J., WaltoN, DaNeorth, Peters and SymoNds, JJ., concurred.