5 W. Va. 190 | W. Va. | 1872
This was an action of trespass on the case in assumpsit. The declaration consists of the common counts, and a special count on a lease. The account filed with the declaration states distinctly the several items of the plaintiff’s claim; two of the items are stated as follows, viz:
“ To amount received from January, 1865, to January, 1869, on account of Elizabeth H. Thompson’s proportion of the proceeds of the sale of certain lands, made to Benjamin S. Thompson by George S. Patton, special commissioner, on the 15th of September, 1856, under decrees rendered by the county court of Kanawha county, in the cause of Thompson and others vs. Thompson and others, four hundred and fifty dollars.”
“To amount received by George P. Thompson, of Helena M. Turner, in the year 1867, for the use of said Elizabeth H. Thompson, being for the hire of a negro woman belonging to said Elizabeth H. Thompson, one hundred and sixty-five dollars and sixty cents.”
The defendant pleaded non-assumpsit, payment and set-offs. Issues joined. Upon the trial it appears from the bill of exceptions setting out the facts proved, that the plaintiff, among other facts, proved that Francis Thompson, deceased, was the agent of the plaintiff in the years 1854-5-6-7-8-9 and 1860, to hire out her negroes, lease her farm and transact other business for her; that in the years 1855, 1856 and 1857, said Francis Thompson, as such agent, hired a negro woman, belonging to the plaintiff, to John P. Turner, and took bonds from said Turner in each case of hiring, in his own name, payable to himself; that after the death of said F. Thompson, the defendant, G. P. Thompson, as administrator of said Francis Thompson’s estate, collected from Turner’s estate the amount of the said bonds, and as such administrator, accounted for the same to the estate of said F. Thompson, and disbursed the amount so collected in the settlement of said Thompson’s estate. It was also proved that when the defendant collected this money on the bonds aforesaid, he was told
The defendant asked the court to give the following instruction to the jury, viz : “ If the jury are satisfied that the bonds of Turner, paid after his death to defendant, as administrator of Francis Thompson, were made payable to said Francis Thompson, the legal title of said bonds were in said F. Thompson, although the negro woman, for the hire of which the bonds were given, belonged to the plaintiff, and that her title to said bonds, being equitable only, are not recoverable in' this action.” The court refused to give the instruction asked for, but offered to give it with this addition, viz: “ But the money collected on said bonds, if it appear she had the legal right to the same, she can recover in this action.” As it does not appear that the court gave the instruction with the addendum, but merely offered to do so, although the record states that the defendant excepted to the “ opinion of the court refusing the instruction, as well as the addition thereto,” it is not our province now to settle the point whether the instruction with the addendum would have been proper or not in this action. The question is, did the court err in refusing the instruction asked for by the defendant ? From the tenor of the instruction' asked for, the defendant seemed to act on the hypothesis that the plaintiff was suing to recover the title to the bonds; that certainly is the inference from the language used, and must have been so interpreted by the court when the learned judge refused to give it, unless amended as proposed by him. She was proceeding under the common count for money had and received, not for the bonds nor title thereto, but for the money that resulted from the hire of her negro woman; and it made no difference whether her title to the money was legal or equitable, if she had title thereto she could recover under this action. The mere fact that her agent had taken from Turner, bonds payable to himself for the hire-money, did not divest her of the right and title to the money, when received by him. Suppose Francis Thompson had collected the money and surrendered the bonds to the obligor in his life-time, certainly it will not be denied
In the case of Newsum vs. Newsum, 1 Leigh, 86, the court held that the administrator, who sold a slave whereof his intestate died possessed, but which in truth belonged of right to another, and applied the proceeds to the payment of .his intestate’s debts in due course of administration, without any notice of the right or claim of the true owner, he was personally liable to the true owner for the value, in trover brought by the owner against him. There can be no doubt .that the plaintiff, in that case, might have waived the tort and brought an action of indebitatus assumpsit for the money received by the wrong-doer. Osborn vs. Bell, 5 Den., 870; Estwick vs. Hugg, 1 Dall., 222. And if he had done so, the case •would have been not only similar to the one now under con
To the defendant the action affords a complete defense. Courts of equity could not give him greater latitude. If he failed in the trial to avail himself of all his grounds of defense, the fault was with himself, and not in the technicalities of la.w governing this form of action.
The defendant also asked the court to grant him a new trial because the verdict was contrary to the evidence, &c., but the court refused a new trial, to which opinion defendant excepted. It seems to me the evidence, so far as the record shows, justified the jury in finding the verdict they did, and the court did right in refusing the new trial. The judgment, should be affirmed with costs and damages.
Judgment affirmed.