3 Vt. 99 | Vt. | 1830
delivered the opinion of the Court. — The following questions are made in this case : 1st. Whether the plaintiff can maintain an action of trover for a note given by him to defendant under the circumstances detailed in this case ? 2nd. Whether, upon the evidence of the judgement rendered on the note, the plaintiff was so far precluded by the judgement, that he could maintain no action against the defendant for the injury sustained ?
The case states that this note was given to the defendant on the exchange of horses, but was to be returned to the plaintiff if he rescinded the contract for the exchange, and that the plaintiff did rescind that contract. The note in question went into the possession of the defendant lawfully, but, on the rescinding the contract, it was his duty to return it to the plaintiff when demanded.
It is admitted that an action of trover will lie for a note against a third person ; but it is questioned whether it will lie to determine y question between the maker and the payee. If there was no authority against maintaining this action, we should feel disposed to sustain it. But the authorities fully warrant the action. In the case of Towle, administratrix, vs. Lovet, (6 Mass. 394,) an action of trover for the title deeds of the estate belonging to the intestate was supported. In the case of Parry vs. Frame, (2 Boss. & Pull. 451,) an action of trover was maintained for a lease delivered to the defendant, for the purpose of procuring an assignment drawn of the same, and who refused to redeliver it on demand or accept of an assignment. In the case of Lucas vs. Haynes, reported in 2 Lord Raymond, 871, and also in 1 Salk.
On the second question made, we are of opinion that if the judgement rendered on the note had any effect on the rights of these parties, an exemplification of the record should have been produced; and the court would not decide upon the legal effect of that judgement without higher evidence of it than the mere statement of the witness on his cross examination, that a judgement had been rendered. It was objected at the trial, that this was not sufficient evidence that such judgement had been recovered. And the defendant should have produced a regular copy of the record, if it was of any importance to him to have it in the case. As this disposes of all the questions which have been raised, it is unnecessary to enquire what would have been the effect of the judgement if it had been in evidence. At the jury trial I was of opinion that the fact of a suit having been brought on the note, and a judgement thereon, was of no other importance than as it might affect the damages to be recovered. If this action can be maintained, the right of the plaintiff to the action was complete when the defendant wrongfully sold the note, and the plaintiff' might then consider the transaction as a conversion by the defendant, to the value of the full sum for which the note was given. He might either voluntarily pay the note, or he might suffer it to be sued and pass into judgement, and pay the amount thereof on execution, if he had resisted the payment, and defended a suit brought thereon, and in that way avoided the payment of the note, or any part thereof, it would have reduced the damages to which he would otherwise have been entitled ; but would have had no other effect. And I still retain the opinion which I then formed.
The judgement ofthe county court is affirmed,