Floyd v. Day

When an agent, compromises a demand of his principal, by receiving from tne debtor a negotiable note, endorsed specially to the agent, the principal canna* maintain trover for the note; but the agent becomes immediately answerable for the amount of the liquidated damages as for so much money received by him to the use of his principal, whose proper remedy is an action of assumpsit

Trover for a promissory note for 600 dollars, subscribed by Sivasey and Rogers, payable, with interest, to one Paul Pilsbury, or order, and endorsed by him to the plaintiff. Upon trial, before Sewall, J., at the sittings here, after the last November term, a verdict was given for the defendant that he was not guilty, which was taken, subject to the opinion of the Court, upon the report of the judge, the plaintiff waiving his right to review, and moving for a new trial. The case, as reported by the judge, was shortly this:—The plaintiff, having a demand on Pilsbury, for begetting her with child, employed the defendant to pursue the same in her behalf, and made him her attorney for that purpose. He went to Dover, in New Hampshire, where he found Pilsbury, and arrested him. The matter was then compromised by P.’s agreeing to give 300 dollars, for an acquittance in full. As payment or security for that sum, he delivered Day the note described in the declaration, and which he endorsed specially to Day, the sum of 300 dollars having been previously paid and entered upon the note. For the interest due, Day gave his own note to Pilsbury, and also gave him a full discharge in behalf of the plaintiff. These transactions were in January, 1805. In the course of the same month, the plaintiff applied to Day for a settlement, requesting him to collect some money for her, and offering. if she could have 100 dollars upon the note, to let the vest remain in his hands for two years, he paying her the interest. Day undertook to collect the 100 dollars, observing that he must deduct 27 dollars, for the note he had given Pilsbury on account of the interest, and that she might have the whole i sum due, if she should want it, upon two days’ notice. After this she demanded the note, and was refused. In the following March she employed Pilsbury to demand and recover the note from Day, and gave him a power of attorney for that purpose, in pursuance of which, he repeatedly demanded the note, and was refused; but at- the last time Day proposed a settlement, and claimed to have an allowance of 30 dollars for his time and expenses in the service of the * plaintiff. Pilsbury refused to make him the allowance, [ * 404 ] and Day refused to deliver up the note. It was agreed that Day did collect 100 dollars upon the note, of which he paid the plaintiff 70 dollars, retaining the other 30 by her consent; and that she had also paid him the sum of 10 dollars, for which she had no receipt or voucher. Upon this evidence the jury were directed that the special endorse ment upon the note, and the other circumstances in evidence, had made it the property of the defendant; and although he might be accountable for the amount of it in another form of action, yet that he was not liable in this action. And now, Livermore, in support of the motion for a new trial contended that the note in question vested in the plaintiff, and became her property on the delivery of it to the defendant, who received it as her agent only. Property in a personal chattel, or a right to the possession ot it, is sufficient ground to maintain an action of trover against one possessed of the chattel, by whatever means he may have become possessed of it. When the defendant had discharged Pilsbury of all the plaintiff’s claims upon him, and had received this note in satisfaction, he received it solely for her use, and his afterwards procuring it to be specially endorsed to him was a tortious conversion of it to his own use (1). The Court suggested to Livermore that his declaration described a note as endorsed to the plaintiff, and the evidence was of a note endorsed to the defendant; and they thought the variance fatal. Livermore thought the particular recital of the endorsement was unnecessary, and hoped the Court would reject it as surplusage, in a case where the equity was so clearly and strongly with the plaintiff. The declaration was afterwards amended by consent, by striking out the recital of the endorsement to the plaintiff. Prescott would have argued against the motion, but was informed by the Court that it was unnecessary.