16 Barb. 633 | N.Y. Sup. Ct. | 1853
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
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' inno
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
Welles, Johnson and T. R. Strong, Justices.]
The judgment of the special term was clearly right, and a new trial must be denied.