Long v. McIntosh

Lumpkin, J.

(After stating the foregoing facts.)

The controlling question in this case is whether the maker of a negotiable promissory note past due pan bring an action of trover against the payee to recover possession of it, on the ground that it has been paid in full, and that delivery of it has been refused on demand. It requires no argument or citation of authorities to establish the general proposition that promissory notes, bills, and bonds are personal propertjq which may be the subject of conversion, and for which an action of trover will lie. If a note should *663 be stolen from its owner, or if it should be placed with another for a particular purpose and should be wrongfully converted, it will not be denied that an action of trover could be brought to recover it. But it is contended, that, after it has matured and been paid, it ceases to have any value except as a mere piece of paper, and that its possession can not be recovered from the holder by a trover suit. The general commercial practice has long been to require the delivery of a note to the maker when he pays it in full. It has been declared that the holder of a negotiable promissory note is not entitled to demand payment without delivering up such note, at least where it is. payable- to bearer, or to order and indorsed. Such appears to be the rule in England. In America the authorities are not all agreed o.n the point. In England it has been held in some cases that no recovery can be had at law upon such a negotiable instrument, alleged to be lost or destroyed, the title to which might pass by delivery; but that relief must be sought in equity, which in granting it could require a proper indemnity. Story on Promissory Notes (6th ed.), §§106-111. The contention that trover will not lie for a promissory note after payment is based on the idea that it is no longer of value. This, we think, is not sound in principle. Before payment the note is the evidence of indebtedness. If it is lost or destroyed by accident, the debt is not thereby discharged. After maturity, or even after payment, it is still valuable as evidence. If suit should be brought upon it, the production of it by,the payee or transferee would make a prima facie' case, if it were not cancelled. On the other hand, its possession by the maker would be valuable evidence to show payment. So that a note, even after payment, has a value as evidence. It is property and valuable to the owner, although it may not have a market value. In Moody v. State, 127 Ga. 821 ( 56 S. E. 993 ), a written notice which was fastened to a telephone pole, and which warned trespassers against hunting or fishing on land, was held to be property which might be the subject of malicious mischief. Suppose, -instead of a promissory note, upon payment of the debt, the debtoi should receive a receipt, and this should be stolen or wrongfully converted, would there be any doubt of its value as evidence, and that the owner might recover it in an action of trover? In Fullam v. Cummings, 16 Vt. 697 , it was held that where a debtor had made copies of his creditor’s accounts against him, and the creditor *664 liad got possession of such copies and refused to redeliver them, the debtor might bring an action of trover therefor. The best considered case on the question now before us which has come to our notice is that of Stone v. Clough, 41 N. H. 290, in which it was held that “Trover may be maintained by the maker of a promissory note against the payee, after the same is fully paid, if the payee, having the note in his possession, refuses to deliver it to the maker upon demand, or if, after payment, the payee disposes of the note.” See also Inhabitants of Otisfield v. Mayberry, 63 Me. 197 ; Buck v. Kent, 3 Vt. 99 ( 21 Am. D. 576 ); Pierce v. Gilson, 9 Vt. 216 ; Fletcher v. Fletcher, 29 Vt. 98 ; Spencer v. Dearth, 43 Vt. 98 ; Ilson v. Thompson, 6 Okl. 74 ( 52 Pac. 388 ). In Pierce v. Gilson, 9 Vt. 216 , supra, there was a dictum of Williams, C. J., that the action could not be maintained where the fact of payment was denied by the payee; but this was criticised and disapproved in Gleason v. Owen, 35 Vt. 590 , and in Spencer v. Dearth, 43 Vt. 98 , supra. In Thayer v. Manley, 73 N. Y. 305 , where an action was brought for the conversion of three notes, it was said that “Although plaintiff has an equitable remedy, he may sue for the conversion.” Story’s Eq. Jur. §906. In Rushin v. Tharpe, 88 Ga. 779 ( 15 S. E. 830 ), it was held that the owner of a promissory note, of which another fraudulently obtains possession and which he converts to his own use by suing it to judgment and collecting the amdunt due thereon, may, in an action of trover, recover from the latter the value óf the note, notwithstanding such suit and judgment and the collection thereof, and notwithstanding the plaintiff had knowledge of these facts before bringing suit. The statement in the opinion that authorities were cited to show that if the note was paid, or in any manner legally discharged, trover would not lie to recover the value of it, for it would have no value, was obiter dictum.

The right of a plaintiff in trover in this State to elect to take a money verdict does not alter the ease. If he so elects, it would only affect the question of the amount of damages. If the note is converted before due, its amount furnishes evidence as to its value. But where it has been paid, its amount will furnish no measure of damages. In that event, the damages recoverable would be those actually resulting from the conversion; and if a money verdict was asked and no special damages shown, probably the damages recov *665 erable would be nominal. If tbe plaintiff elected to take a verdict for the propérty alone, under the Civil Code, §5335, the rule just stated would not apply. The action of trover will determine the title to the note. If the plaintiff recovers it, the payee would of course not be entitled to any judgment upon it. If the plaintiff fails to recover it, the payee will have the note, and can sue upon it, or deal with it as he sees proper. The fact that the payee can not recover a judgment on the note against the plaintiff in the trover suit, but must first abide the determination of its ownership, furnishes no such case of multiplicity of actions as to authorize equitable interference with the suit in trover.

Judgment affirmed.

All the Justices concur, except Holden, J., who did not preside.