| Ark. | Jul 15, 1840
delivered the opinion of the court:
At the January term, 1837, an opinion was delivered in this case, reversing the judgment of the court below, and remanding the cause for further proceedings to be had therein according to law. At the same term the counsel for the defendant in error filed a written argument for a rehearing, which was subsequently granted, and the case now stands in the same attitude as if no opinion had ever been given. The points in controversy have been elaborately and ably argued on-both sides. And after a careful review of the whole subject, we cannot perceive any sufficient ground for a reversal of the opinion heretofore given.
That opinion proceeded upon the principle, and was based upon the fact, that the defendant in error is not entitled to recover, because he failed to show that he possessed any interest whatever in the subject matter of the suit. And that the receipt adduced upon the trial, so far from proving a privity of contract, expressly estabished a legal interest in another, and therefore defeated the plaintiff’s right of action. In order to understand the points that are raised by the assignment of errors, it is necessary to consider the nature and character of the action brought, and the proof that the plaintiff below adduced on the trial, to entitle him to a recovery. The action is in case, and the declaration contains three counts.
The first count alleges, that “ Holliday caused to be delivered to Sevier, and Sevier accepted and received from him a certain note of hand, made by one Joshua J. Henness, calling for one hundred and thirty-three dollars, to bring suit on, recover and collect from the said Joshua J. Henness, for the use and benefit of Holliday, for certain fees and rewards to him the said Sevier in that behalf.” The second count state's that “ Holliday caused to be delivered to Sevier, attorney as aforesaid, a certain other note for one hundred and thirty-three dollars, to him the said Ambrose H. Sevier, being such attorney as aforesaid, in a reasonable time then next following suit brought on it, and the said debt of one hundred and thirty-three dollars as aforesaid to be recovered and collected of and from the said Joshua J. Henness, for the use and benefit of said Peter Holliday, for certain fees and reward to the said Ambrose H. Sevier in that behalf.” That Sevier received the note, and undertook to sue, recover and collect it, but did not bring suit, so that the debt was lost. The third count is in trover, for a certain other note for $133, made by Joshua J. Henness, the proper goods and chattels of Peter Holliday.
The defendant filed a general demurrer to the declaration, which was overruled, and an interlocutory judgment was then entered, and a writ of inquiry awarded, returnable to the next term of the court. At the July term thereof, 1828, on a motion and affidavit filed by the plaintiff in error, the judgment previously rendered was set aside, and he, by leave of the court, put in a plea of not guilty, upon which issue was taken. And, on the trial of the case, the plaintiff offered in evidence the following receipt: “Received of Peter Holliday one note of one hundred and thirty-three dollars, against Joshua J. Henness, drawn in favor of William English, this the 14th of December, 1825.
A. H. Sevier.”
To the introduction of this receipt, as evidence, the defendant objected, but the court overruled the objection, and it was permitted to go to the jury. To this the defendant excepted; and thereupon a verdict and judgment were given for the plaintiff; and the case is now brought here by error to reverse the judgment of the court below. The counsel in the case having differed in regard to the opinion expressed by the court as to the receipt, the court then slated the receipt was evidence conducing to prove a privity of contract between the plaintiff and defendant; to which opinion there was also an exception taken by the defendant. He then moved-in arrest of judgment, which motion was overruled.
The defendant below is charged, as an attorney at law, upon a breach of contract in the discharge of his official duty. Before the plaintiff can fix his liability, he must allege and prove a valid contract or cause of action, and its breach and violation on the part of the defendant, by which he was damnified. These facts must appear upon the record, or necessarily arise by presumption or intendment of law. An attorney is not liable, in the discharge of his official duty, for claims put into his hands to collect, as such attorney, unless it be shown that he is guilty of culpable negligence in the prosecution of the suit, whereby the plaintiff has lost his debt. Nor can he be held liable for money, collected by him as an attorney, unless a demand be made upon him and he refuses to pay it over, or remit it, according to the instructions of his client. Demand and refusal are indispensable to the plaintiff’s right of recovery. And so it has been ruled in this court, in the case of Cummins vs. McLain and Badgett, decided during the present term. To entitle the plaintiff to recover upon the two first counts of his declaration, it was, therefore, necessary for him to prove, upon the trial culpable negligence by the attorney, in failing to collect the-note put into his hands, or in refusing to pay it over, upon demand, after collection. These facts the plaintiff was bound to prove, or the jury were not warranted in finding a verdict in his favor They may arise in the evidence adduced upon the trial, or they may be inferable from the verdict and judgment rendered in the court below, provided the plaintiff has set out in his declaration a good and valid cause of action.
It is contended, in behalf of the plaintiff below, that all the defects in the declaration are cured by the defendant’s pleading over to the action, or that the defects are of such a character as are remedied by the verdict, or by the statute of jeofails and amendments, and that the court below rightly admitted the receipt in evidence. These propositions are denied by the plaintiff in error. And it is alleged that the declaration contains no valid cause of action; and therefore the defects of the declaration cannot be aided by a verdict, or by the statute of jeofails and amendments.
The whole doctrine upon the subject, as well in regard to what defects are cured at common law, and what by the statute of jeofails, is discussed with much ability and learning by Sergeant Williams, in his note to Stennel vs. Hogg, I Saund. R. 228, A. B. and C. The principle there laid down is, “ that where there is any defect, imperfection or omission, in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily requires, on the trial, proof of the facts so defectively or imperfectly stated, or omitted, and without which it is not to be presumed that either the Judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission, is cured by the verdict.”
In Speares vs. Parker, 1 T. R. 145, Buller, Judge, said “ after verdict nothing is to be presumed but what is expressly stated in the declaration, or what is necessarily implied from those facts which are stated;” that is, where the whole is stated to exist the existence of the parts is implied, or where the chain is alleged to exist, the existence of the component links will be implied after verdict. And this doctrine is fully sustained by all the authorities upon the point.
In Addington vs. Allen, in the Court of Errors in New-.York, the Chancellor said, i( if the plaintiff wholly omits to state a good title or cause of action, even by implication, matters which are neither stated or implied need not be proved at the trial, and there is no room for intendment or presumption; as the intendment must arise from the verdict, when considered in connection with the issue upon which it was given.”
The rule laid down by Chief Justice Baron Gilbert, and reiterated by Lord Mansfield, and approved by Chancellor Kent, in 17 J. R. 448, is, “ if any thing essential to the plaintiff’s action be not set forth, though the verdict be for him, he cannot have judgment, because, if the essential parts of the declaration be not put in issue, the verdict can have no relation to it; and if it had been put in issue, it might have been found false.” 11 Wend. R. 415. And Ld. Mansfield has said,t£ that a verdict cures a title defectively stated, but not a defective title.”
We will now proceed to test the first and second counts in the declaration by the authorities and principles above cited and laid down. The first count does not state that Henness was liable on the note, or that it contained any promise, by him, to pay any given sum of money. It omits to state to whom the note was payable, and it does not show any title in Holliday to the note, inasmuch as it neither stated that it was made payable to him, or endorsed over to him, or delivered to him in any way whatever. And it is questionable whether it contains any promise or undertaking, by Sevier, to sue of collect the note, either expressed or implied. It fails to state, in legal language, by whom the fee or reward was to be paid to Sevier for the collection and prosecution of the suit. As to the allegation “ that Holliday caused the note to be delivered to Sevier, and Sevier received it to collect for the use and benefit of Holliday,” it certainly does not amount to a substantive averment that Henness was liable to pay, or that Holliday was authorized to receive the money when collected. It may, and probably does show the object of the parties in giving and receiving the note, which was to bring suit upon it; but it is not justly inferable, from the object and intention of the parties, that the suit, when brought, would be for the benefit and use of Holliday; because, in law, he is not entitled to the proceeds of the note, unless he is shown to be the legal or equitable owner of the note. The same averment might, with equal truth, be made if Holliday possessed himself of the note by a fraud or by a tort. There is no title to the note stated in Holliday, nor is it necessarily implied in any other allegation arising upon the pleadings or verdict. There are, in our opinion, no facts stated which could not be proven, without, at the same lime, establishing Holliday’s title to the note, or to the proceeds of it. The count does not show that Holliday was payee, endorsee, or even that he ever had possession of the note; and,therefore, there is a total omission of a material fact, which has no connection with any other fact alleged or found. Is there not, then, something essential to the plaintiff's right of action which is not set forth? or in other words, does not the count contain a statement of a defective title which is not aided by verdict? There is no allegation in the count that the note was due at the time of bringing the suit, or at the time that Holliday caused the same to be delivered to Sevier for collection; and, consequently, it does not appear, either by any allegation, or by any inference from the verdict, that Henness had ever become liable to pay the note, at all, to any body. And, therefore, a failure upon the part of Sevier, to prosecute the claim, or to collect the money, would not make him responsible, if the individual who executed the note was not legally bound to pay it. The allegation that Henness made the note, calling for $¡133, certainly does not show for whose benefit the note was executed; nor does it contain any express or implied promise to pay the same; for there can be no promise, unless there be some person to whom that promise was made. The expression, “ calling for so muchf means that the amount mentioned is the sum appearing upon the face of the note, hut it is not an allegation that such sum was then due on the note. Nor does it show to whom due; or that the party making the note was legally bound to pay it. The second count is still more radically defective than the first; in fact, it scarcely has the form or substance of a count; and all the objections that lie to the first apply with increased force and effect to the second count, and show it to be totally defective in stating a good cause of action. The question then recurs, are these defects aided or cured by the legal presumptions in favor of the verdict and judgment, or by the statute of jeofails and amendment? If the view we have taken of the subject be correct, they certainly are not; for they are not such defects, imperfections or omissions as may be supplied by a verdict, or by the statute, because they shew a defective title, and not a title defectively stated. No proof, at the trial, can make good a declaration which contains no ground or cause of action. The defects, contained in the two counts, are not implied in, or inferable from the finding of the jury, or from any allegation contained in the declaration; consequently, they are destructive of the plaintiff’s right of action.
The receipt, that was offered in evidence, if it proves any thing, certainly tends to disprove the allegations in the first and second counts. The legal inference drawn from the counts, if they warrant any conclusion at all, is, that the note was executed by Henness to Holliday, or assigned over by the holder to him, for his use and benefit. The receipt, adduced upon the trial, justifies no such conclusion. It merely shows that Sevier received of Holliday a note, of $133, for collection, against Joshua J. Henness, drawn in favor of William English. It does not show that Holliday was. the owner or holder of the note. It clearly establishes the fact, that the note was executed by Henness, and was made payable to English, and, of course, he was the legal owner thereof, and entitled to the proceeds on its recovery. It proves possession and interest in another, and not in Holliday, because, English being the legal owner of the note, the presumption is, that he had the possession of it, and was entitled to the proceeds after recovery. Then, so far from establishing the allegations in the first and second counts, it tends to disprove and contradict them. For it shows that Holliday had no interest whatever in the note; and if that be the case, Sevier could not be held answerable to him for a breach of contract, in failing to collect it, as an attorney. The introduction of the receipt, as evidence to sustain Holliday’s right of action, was, therefore, improperly admitted by the court.
The second bill of exceptions has, in our opinion, nothing to do with the question now before this court. If the receipt was evidence for any purpose at all, to sustain the plaintiff’s declaration, it ought and should have been permitted to go to the jury. The- reason assigned by the court for admitting it cannot be called in question, or have any bearing upon the case. It is certainly not an instruction given to the jury, nor does it appear that the jury heard it. It is merely the assigning of the reason for a decision, about which the counsel differed. The admission or rejection of the testimony offered, is the fact to which the court-look, and not the reason upon which it is predicated.
The party will not be allowed to prove more than he has alleged in his declaration, and where he omits to allege a fact essential to the gist of the action, and which is not involved in the pleadings, or inferable from the finding, he- fails to show a good cause of action; and, consequently, no valid judgment can be pronounced in the premises. The court below, in the second bill of exceptions, in the opinion which they have given, state that “ the receipt was evidence conducing to prove a privity of contract between the plaintiff and defendant.” No privity of contract was alleged in the declaration, nor is there any interest averred, which raises a privity of contract. For it was certainly competent for Holliday to contract with Sevier as the agent of English; and in such case, it cannot be pretended that there could be any privity of contract.
The two counts attempt to set forth a contract, but wholly fail to do so in legal form or effect, and they do not disclose any privity of interest which makes such an agreement.
The counsel of the defendant in error is mistaken in supposing that the court, in their previous opinion given-in this case went upon the supposition that the action was founded upon the receipt. They certainly intended to convey no such idea. The opinion proceeded upon the principle, that the plaintiff below, having failed to show any legal or equitable interest in the note or its proceeds, he, of course, could not be injured or damnified by a breach of contract on the part of the defendant. Having no interest in the note, made by Henness, he could sustain no injury by Sevier’s failure to prosecute the suit or collect the money. Whatever might be Sevier’s liability on the receipt, still, Holliday could claim no benefit from it, as he was not legally or equitably interested in its proceeds. The argument for a rehearing assumes, as its basis, that Sevier made a legal and valid contract with Holliday for the collection of the note, and the breach of this contract constitutes the gist of the plaintiff’s action. This contract, it asserts that the declaration discloses, and that it is legally inferable from the facts alleged, and from the finding of the jury and judgment of the court below. The argument assumes that to be true which constitutes the question in issue between the parties. If its premises bé once granted, its conclusions unquestionably follow. We have endeavored to controvert the position that there is any legal or valid contract disclosed by the declaration, or upheld by the proof, or inferable from the verdict and judgment. If the authorities we have cited, and the reason adduced in support of them, be correct, then the two first counts in the declaration wholly fail to establish a good cause of action; and, therefore, the plaintiff had no right to succeed upon them. The third count is in trover for a certain other note, for $133, made by Joshua J. Henness, the proper goods and chattels of Peter Holliday. In form, trover is a fiction, says Lord Mansfield, but in substance, it is a remedy to recover the value of a personal chattel wrongfully converted by another to his own use. The injury lies in the conversion, which is the gist of the action; and it is for the recovery of damages to the value of the thing converted. To entitle the plaintiff to recover, two things are necessary: First, property, either general or special, in the plaintiff; and, secondly, wrongful conversion by the defendant. The conversion may be, first, by a wrongful taking of the thing converted, or by an illegal assumption over it, or by a wrongful detention. Bacon Ab. Trover, B; 2 Saunders 47, c. n. 1.; Payne vs. Doe, 1 T. R. 5G; 1 Chit. Plead. 148, 51 52, 53. Title in another is a good defence to defeat the action of trover. Whatever shows either a want of title in the plaintiff, upon general issue, or disproves conversion by the defendant, will defeat the action; and this position is sustained by all the authorities. Kennedy vs. Strong, 14 J. R. 128; Schumerhorn vs. Van Vecklenburg, 11 J. R. 529; 3 Starkie 1487; 2 Saund. 47, 873, and 9; 7 T. R. 12. The declaration, in trover, should state that the plaintiff was possessed of the goods as his own property, and that they came to the possession of the defendant by finding. The omission of the former words is not material after verdict, and the finding is not traversable. The count, in the declaration now under consideration, would certainly be fatally defective upon a general demurrer, for it wholly fails to state that the plaintiff was possessed of the note, as of his own property, or that it came to the possession of the defendant by finding. It is probable, however, that these defects are cured after verdict. And so we have regarded them in the present instance. The plaintiff, in the action, has wholly failed to support this count, because the evidence introduced upon the trial disproves his title to the note, and clearly establishes the interest in another.
It is certainly true, as has been argued by the counsel, that every legal inference and presumption will be indulged in by this court which the pleadings and proof will warrant in favor of the verdict and judgment below. But where there is no basis to rest such presumptions upon, they are wholly inadmissible. For where the averments, in the declaration, do not, in themselves, show a sufficient title in the plaintiff, no proof adduced upon the-trial will supply such omissions, nor can they be aided or supplied by verdict and judgment. In such cases there is no room for the indulgence of presumptions. In the case before us, the defendant below was certainly not guilty of a conversion, because he has not assumed to exercise any illegal ownership over the note. Nor has the plaintiff been injured in the slightest degree, by his conduct in regard to that matter, whatever it may be. The introduction of the receipt, by the plaintiff, according to our construction of it, clearly proves possession and title in another; which unquestionably defeats his own right of action. Where the plaintiff possesses no title, the defendant cannot be held bound to him for an unlawful conversion. This being the case, it necessarily follows that the plaintiff, by his own showing, has no right to recover on his count in trover. The judgment of the court below must therefore be reversed; and leave given the parties to amend their pleadings, if asked for.