25 Wis. 636 | Wis. | 1870
If the court below was right in telling the jury that if, after being told by the district treasurer to draw the money on the check and hand it to him, the defendant returned the check and took a certificate of deposit,.it was a conversion, it was wrong in saying that, in addition to proving that fact, it was also necessary to prove a demand and refusal in order to sustain the action. A demand and refusal are never necessary to be proved where an actual conversion has already been shown.
But we have come to the conclusion that the judgment ought not to be reversed, for the reason that, upon the facts as stated and claimed by the plaintiff, the defendant ought not to be held guilty of any conversion. This check was drawn payable to him, and delivered to him by the town treasurer by mistake, the latter supposing him to be the treasurer of the district. He never used or attempted to use the money in any manner for himself. On the contrary, seeing the mistake, he at once offered the check to the treasurer of the district. This the latter declined to accept. He was' not acquainted with Slavan, and he thought the-town treasurer should give him an order payable to himself. The only fair interpretation of his evidence is, that he would not accept the check. For, although he states that he finally told the defendant that he could draw the money on it and hand it to him, yet it is evident that this was not meant as any retraction of his former declination to accept the check. He did not wish to take any responsibility in respect to the check, but if the defendant drew the money on it he would take that.
This being the case, the check having been placed in his hands without any fault on his part, having offered it to the proper officer, who declined to receive it, he ought not to be held guilty of a conversion for merely substituting a certificate of deposit for the check. That worked no change whatever of the status or title to the fund. Before, he had a check on the bank, payable to him; afterward, he had a certificate of deposit on the same bank, payable to him. He never drew the money at all. He was not bound to draw it. He did not change the condition of the fund. He substituted merely one evidence of a claim upon the bank for another.’ He was as ready to deliver the certificate as the check to the party 'entitled to it. If the legal title to the money was in the district while he held the check, it was so after he took the certificate. For this reason there was no conversion, even assuming that, ordinarily, an agent would be guilty of conversion by depositing the money of his principal in his own name. It is probable that that is not necessarily true, where the deposit is kept separate from all the agent’s own funds, and its identity is not lost. See Brown v. Dunham, 11 Gray, 42. But it is unnecessary to consider that general question. If there was no conversion, no action could be maintained upon such a state of facts, except for gross negligence. And it could hardly be claimed'that it was such, merely to leave the money where the town treasurer had deposited it.
For the reason that it clearly appears that the judgment is right upon the evidence, it must be affirmed.
By the Court. —Judgment affirmed.
