Meyer v. Doherty

133 Wis. 398 | Wis. | 1907

Siebeceee,, J.

Tbe complaint charges tbe defendant witb having converted a sum of' money, tbe property of Mary Doherty, to bis own use. Defendant admits having received $460 of her money after her decease, states tbat be has disbursed all but $200 of tbis amount in payment of her debts, funeral expenses, and for tbe erection of a suitable monument for her, and be denies tbat at tbe time of her death or thereafter be bad in bis possession any of her property except tbis sum. There is evidence tending to show tbat tbe deceased in her lifetime bad deposits of about $3,600 in a bank, and tbat tbe defendant drew these deposits from tbe bank on four checks signed by tbe deceased. Upon tbe trial plaintiff sought to introduce .evidence of decedent’s mental capacity at the time of the execution and delivery of these checks. An objection to the reception of this evidence was interposed by respondent, and plaintiff then made an offer to show by evidence tbat tbe decedent at tbe time tbe checks were given was so weak mentally as to wholly incapacitate her from transacting any business, and tbat the respondent bad obtained these checks and tbe proceeds thereof fraudulently and bad converted them to bis own use.

It is asserted tbat the complaint is one charging conversion of tbe money after tbe death of Mary Doherty. It alleges tbat tbe defendant bad decedent’s money in bis possession at the time of her death and tbat be retains tbe same in bis possession and has converted it to bis own use. These facts sufficiently allege a taking and conversion of the money before her death. The allegation that, although often requested to so do, he refuses to pay the same to plaintiff as administra-trix of decedent's estate, does not limit the right to recover for a conversion after Mary Doherty’s death. If the evidence adduced should establish that the defendant actually converted decedent’s money in her lifetime, then the allegation of his refusal to pay it to the administratrix becomes immaterial, and the cause of action may he sustained without proof of these facts, which hear only on the question of the time of the conversion.

Since the court treated the plaintiff’s offer to prove that decedent was mentally incapacitated to transact business at the time defendant secured the checks and the proceeds thereof as the basis for a ruling as to the admissibility of such evidence in the case, we must, for the purposes of this appeal, treat the case as though such facts were in evidence and had been disregarded by the court in determining the rights of the parties. To so disregard them would be erroneous and would result in injustice to the plaintiff, for the reason that if defendant wrongfully secured the checks and the proceeds thereof, this would operate as a fraud upon decedent and would not vest in the defendant any right to the checks or the proceeds. Under such circumstances he would acquire no right to or interest in the money so obtained by his wrongful acts. The payment of the money by the bank, because of his wrongful conduct, operated to vest in the decedent all the rights and whatever interest the bank transferred in the transaction and left him without any right to it, and rendered him liable to her for his wrongful conversion of it. His wrongful participation in the transaction of obtaining the money from the bank placed him in the same relation to decedent’s rights in it as if he had obtained it directly from her. The argument is made that tire presentation of the check at the bank amounted to a satisfaction of decedent’s claim against the bank through the payment of the money, and, since the check was the medium through which this was accomplished, the check must be held to be an actual transfer by decedent to- the defendant of the right to the money paid on it. This would be a valid claim if the transaction were not infected by defendant’s wrong. True, in a bona fide transaction the giving of a check is presumptive evidence of the payment of a debt (Stimson v. Vroman, 99 N. Y. 74, 1 N. E. 147; Bernard v. Fee's Estate, 129 Mich. 429, 88 N. W. 1052; 1 Greenl. Ev. § 38)-, but this presumption is not conclusive and may be wholly overcome by other evidence. If the evidence should establish that the defendant fraudulently secured the checks, production of them, as between himself and the decedent, can avail him nothing, because they would operate to vest no right or interest to the proceeds of them in' him.

The fact that the property alleged to have been converted is money in no way affects the situation, since it will be presumed, if his wrongful conduct be established, that he knew it was decedent’s money, and he will be held to the same liability as if he had wrongfully converted some other of her personal property. Atlantic Bank v. Merchants’ Bank, 10 Gray, 532; Alexander & Co. v. Goldstein, 13 Pa. Super. Ct. 518; State v. Omaha Nat. Bank, 59 Neb. 483, 81 N. W. 319; Cook v. Monroe, 45 Neb. 349, 63 N. W. 800; Donohue v. Henry, 4 E. D. Smith, 162; Hinckley v. Lewis, 45 Ill. 327. In an action for conversion the rule is well established that in an illegal taking or wrongful assuming of a right to personal property the very manner of the taking or the holding of the property constitutes a conversion, and no further step is necessary to'perfect the right of action, since the right of action is complete. This rule is well established and recognized in the decisions of this court. School Dist. v. Zink, 25 Wis. 636; Wheeler v. Pereles, 40 Wis. 424; First Nat. Bank v. Kickbusch, 78 Wis. 218, 47 N. W. 267; Oleson v. Merrill, 20 Wis. 462. In the last case cited it is observed that, in an action of trover or for the recovery of property, an averment of its wrongful talcing is sufficient without demand, if sustained "by proof of its original wrongful talcing or subsequent wrongful appropriation. In this case defendant denies all possession or appropriation of any of decedent’s money. Under such circumstances a demand for it is not necessary to perfect the cause of action, if it he shown that he obtained it through his wrongful conduct.

It is urged that the complaint is insufficient in not alleging the facts upon which the conversion is predicated. The complaint is in the usual form of conversion, without stating the particulars of the claim. This form of pleading is deemed sufficient under the rules of the Code. McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800; Kammermeyer v. Hilz, 107 Wis. 101, 82 N. W. 689; Thomson v. Elton, 109 Wis. 589, 85 N. W. 425.

The circuit court erred in refusing to receive the evidence offered by the plaintiff.

By the Gourt. — Judgment reversed, and the cause remanded for a new trial.