41 N.H. 290 | N.H. | 1860
That trover may be maintained for a promissory note wrongfully converted while it remains unpaid, and while it is the evidence of a subsisting contract and liability to pay, is too well settled to call for any citation of authorities; and that any written security, or other paper containing evidence of a title, or of a subsisting contract, may be the foundation of this action, cannot admit of dispute. But upon the question raised in the case before us, there may be room for difference of opinion, as there would seem to be some conflict in the authorities upon that subject. The defendant’s ground of defence is, that trover is an action founded on property, and that it cannot be sustained for that which is utterly valueless; and it is claimed that the note in question had been lawfully paid, and therefore ceased to be of any value to any one; that it had no property or value in it, which can be the subject of proof, of computation, or of estimation, and that it cannot be considered as property in any sense of the term. Todd v. Crookshanks, 3 Johns. 432, would seem to be an authority in favor of this position; for it is said in that case that though trover may be maintained for a promissory note in the hands of a third person, yet if it has been paid, and a receipt given for the amount, it is of no value, and neither trover nor detinue can be maintained. But we find that a statement of the whole case mates it more doubtful upon what precise point the decision may
We find a reference in 3 U. S. Dig. 582, to a case — Be-sherer v. Swisher, 2 Penn. 748 — in which it is said to have been held that trover would not lie to recover a bond which had been paid, but not taken up; but what the particular circumstances were we are not informed. In Lowremore v. Berry, 19 Ala. 130, it is said that trover will not lie for the conversion of a promissory note after it has been paid or legally discharged in any manner. But the facts in that case were, that the note in question had not been paid, or legally discharged, though the word “paid” had been written across the face of it by mistake, or by some one without authority; and, upon the facts in that case, it. was held that trover did lie for the conversion of the note. But the plaintiffs here contend that they had such a property in, and right to the immediate possession of, said note at the time of the first demand, and that the note was of such value to them as that they can maintain this action in trover
There can be no doubt, we think, that the plaintiffs have such a right to immediate possession of the note, after it
Buck v. Kent, 3 Vt. 99, was a case where the note had been sold and indorsed by the payee after it had been paid •and demanded by the maker, and a suit had been brought against the maker by the indorsee; and the maker had paid the note to him, and commenced trover against the payee for the conversion of the note; and it was held that he was not bound to make his defence against the indorsee, but that he might recover in trover for the conversion of the note; that the note, though paid, was of value to him; and it is intimated that the plaintiff might voluntarily pay the note, after its transfer, or he might allow the same to be sued and pass into judgment, and pay the amount thereof on execution; or that, if he had resisted the payment, and defeated the suit brought thereon by the indor-see, and in that way avoided the payment of the note, or any part thereof, it would not have prevented him from maintaining trover against the payee, but would only have reduced the damages in such action.
But the case of Pierce v. Gibson, 9 Vt. 216, is directly in point. It is there held that the maker of a promissory note may maintain an action of trover against the payee, when the note has been paid, and left uncancelled in the. hands of such payee by mistake, upon demand by the maker and non-delivery by the payee. It is suggested in that case that it would not answer to permit litigated questions of payment to be decided in such actions; that it could only be allowed where the evidence is not only unequivocal, but also where it was understood by both parties; but that, while that subject was in dispute, and the holder of the note claimed that it was not fully paid, he has a right to retain the note as evidence of indebtedness. Although these suggestions have no application to the case now under consideration, yet we can see no good reason upon which they can be founded. Suppose the maker of a note
In Fullum v. Cummings, 16 Vt. 697, it was held that, where a debtor had made copies of his creditor’s accounts against him, and his creditor had got possession of those copies and refused to re-deliver them to the debtor, the debtor might sustain trover therefor against such creditor. It may be difficult to see how such copies could be of more value to that plaintiff, than a note of hand, when it is fully paid, is to the maker.
In Keeler v. Fassett, 21 Vt. 539, a judgment creditor brought trover for a writ of execution which he had sued out upon his judgment. Held, that such action may be sustained, even though the execution may have expired previous to the commencement of the action. Boyce, C. J., in stating the reasons for the opinion in that case, said; “We also consider that the plaintiff continued to have an interest in it [the execution], though it had become an
This view is also sustained by Goggerly v. Cuthbert, 2 N. R. 170; Trenttel v. Baranden, 8 Taunt. 100; Evans v. Kymer, 1 B. & Ad. 528. In the case before us there was no controversy in regard to the full payment of the note prior to the demand. The note was not lost, or destroyed, but was in the possession of the defendant when it was demanded; and no excuse was given, or attempted to be given, and none existed, why it should not be delivered up : and there must, in accordance with our views and the agreement of the parties, be judgment for the plaintiff; but, as the note has been produced in court to be given up to the plaintiff, that judgment can be only for nominal damages, and costs.