O'Donoghue v. Corby, 22 Mo. 393

O'Donoghue v. Corby

22 Mo. 393 | Mo. | 1856

Leonard, Judge,

delivered the opinion of the court.

There are only two questions in this record' — 'whether the conversion of the instrument sued for was admitted by the pleadings, and if so, whether the amount the paper called for was prima facie the proper measure of the damage. The instructions need not be considered except as they tend to raise *396these questions — both of which must be answered in the affirmative. It is true, a demand and refusal is not a conversion, but only evidence of one; and the reason is, the party may have had a lawful reason for what he did. Here, however, he states the reason, and as it is altogether insufficient, his refusal was without a lawful excuse, and therefore, without any thing more, a conversion of the property to his own use.

The defendant paid a hundred dollars to the plaintiff on the order when it was first presented, and promised to pay the balance upon the return of the parties to St. Joseph. Being subsequently advised, as he states in his answer, that there was some fraud or mistake in the settlement, so that the plaintiff was not entitled to the money, he not only declined paying the residue, but refused to restore the paper unless the plaintiff would return the hundred dollars he had already received. Clearly, the alleged fraud or mistake, if proved, would have been no ground for withholding the order, although it may have been a very good reason, if true in fact, for withholding payment ; and the defendant certainly had no right to impose any condition upon the plaintiff to entitle him to the possession of his own property.

This instrument was, it seems, an account settled between the plaintiff and the Hannibal and St. Joseph Railroad company, which not only imported that the sum stated was due from the company to the plaintiff, but entitled the latter to the money upon presenting it to the company’s officer for that purpose. The amount therefore that the instrument called for was, prima facie, the value of it; and, in the absence of any other proof, the proper measure of the plaintiff’s damages. (Sedg. on Dam. 2d ed. ch. 19, p. 488, and cases there cited.) The jury have found accordingly, under the instructions of the court, and no error, in point of law, has been committed. It was competent for the defendant to have met this prima facie case, by showing that the instrument was of less value than it purported to be ; or, indeed, that it was of no greater value than the paper upon which it was written, by showing payment, or the facts set up *397in the answer, or any facts' impeaching the validity of the instrument ; but he declined going into proof upon this point, and must abide the result. (Sedg. on Dam. above referred to.)

Judge Ryland concurring,

the judgment will be affirmed.