Kalckhoff v. Zœhrlaut
40 Wis. 427
Wis.
1876
Check Treatment
Ryan, C. J.

Wbat may have been the personal rights or liabilities of the respondent for loaning the money of the testator, before she obtained her letters of administration, we need not consider. The appellant and his codefendants received the'testator’s money from her, and gave her the note in question for it. When the letters of administration issued, the note enured to the estate at the election of the administra-trix. This action sufficiently shows that she adopted the note as administratrix, as enuring to the estate in lieu of the testator’s money, lent upon it.

The alleged conversion of the note did not impair the respondent’s title to it. She might have sued upon it, called for its production on trial or assessment of damages, and, in default of its production, have proved it by parol; recovering judgment upon it ex contractu. But she has also a right of action against the appellant and his codefendants ex delicto for the conversion. Mowry v. Wood, 12 Wis., 413.

The appellant contends that the maker of a promissory note cannot be guilty of the conversion of it. But the cases which he cites fail to support the position. And it appears to us quite plain, on principle, that the maker is as liable to an action of trover for the tortious conversion of his own note, as a stranger would be. A recovery in trover against a stranger, and satisfaction of the judgment, would doubtless operate to vest in him title to the note. So a recovery in trover against the maker for the amount of the note, and satisfaction of the judgment, would operate as payment of the note.

It is immaterial, uj)on the demurrer, what the rule of damages in this case should be; and we indicate no opinion upon it. See Mowry v. Wood, supra. We hold only that there is a right to recover some damages.

Doubtless the averment in the complaint of the possession of the note by the appellant and his codefendants, might have been more definite and satisfactory. But we cannot hold it insufficient on demurrer. The gravamen of the action is the *431wrongful conversion, to which, the possession is matter of inducement. The action does not rest upon the fraudulent nature of the possession, but upon the subsequent tortious conversion. The latter would support the action, though the previous possession were entirely innocent and lawful. And vagueness of the averment of possession cannot support the demurrer, though it might support a motion to make the complaint more definite and certain. Morse v. Gilman, 16 Wis., 504; Ready v. Sommer, 37 id., 265.

By the Court. — The order of the court below is affirmed.