21 N.Y.S. 179 | N.Y. Sup. Ct. | 1892
Lead Opinion
This action is brought for the wrongful conversion of $1,0001 The complaint alleges that on the 26th day of May, 1867, plaintiff delivered to defendant the sum of $1,000, with directions to place the same on deposit with H. R. Pierson & Son, bankers in Albany, N. Y., to remain there on interest for the benefit of plaintiff. Defendant, receiving and agreeing to so deposit said money, in fact deposited the same to his own credit. He was not the owner of, and had no interest in, said money. That the same belonged to plaintiff. That thereafter, and prior to October 5, 1888,'defendant, without the knowledge or consent of plaintiff, unlawfully withdrew said money, and unlawfully appropriated and converted the same to his own use. While the complaint does not characterize the deposit of this money by defendant in his own name as a conversión, yet it states all the facts, showing that such deposit by defendant was a wrongful appropriation of the fund. And the complaint also alleges a conversion by the wrongful withdrawing and use of the said money. Defendant, in his answer, alleges that the deposit of the said money in his own name was done with the knowledge and consent of the plaintiff, and denies any wrongful appropriation of the same.
The case presents a question of fact, which the referee has determined in favor of the plaintiff. I have examined the testimony given upon the trial and the briefs submitted by counsel with care. The evidence
Counsel for appellant suggests that the referee erred in declining, at defendant’s request, to find that “the complaint alleged a cause of action in tort, not contract,” and also in refusing to find that, “in order to maintain the action in its present form, it must affirmatively appear that the defendant has been guilty of conversion.” These errors, if they should be deemed such, are harmless. The complaint clearly alleges a cause of action in tort, and I see no reason why the referee should characterize it. The defendant has suffered no injury by his declining to find that a complaint plainly alleging a conversion contains a cause of action in tort. Again, in his findings, the referee distinctly determines that the defendant was guilty of a conversion of the money in suit, and a refusal to repeat the finding can produce no injury. The referee did not err in declining to find that “ defendant was in no way acting in a fiduciary capacity.” He did find properly, on the evidence in the case, that the defendant received $1,000, as the agent of plaintiff, to deposit; hence defendant was acting in a fiduciary capacity. But it is suggested that there was no allegation in the complaint that a fiduciary relation existed. It is true that the complaint does not use-the word “fiduciary,” but facts are stated showing that defendant received the money to deposit, and hence that the relation of principal and agent existed. Where an agent takes money from a principal to deposit in a bank in the principal’s name, it cannot be said that the agent was “not in any way acting in a fiduciary capacity.” See Flagg v. Ely, 1 Edm. Sel. Cas. 206. Hence the above request of the defendant to find was properly refused by the referee. I think the error of-the court below, if any, in overruling the objection to this question asked of plaintiff, viz., “ Did you make an application for a pension on account of your son being killed in the war? ” harmless. The error could not possibly produce any injury to the defendant. The statement from the books of the bank was properly received in evidence, under the stipulation. That stipulation provided that the statement might be read as original evidence; that it was correct as to the amount of deposits to the credit of defendant, and the amount drawn out by him. As we have seen, the evidence in the case is sufficient to sustain the findings of the referee that there was a wrongful deposit of the money
It is insisted that the referee erred in overruling objections to the following, question asked of plaintiff, viz.:
“Did you consent that Mr, Vrooman should draw the $1,000 from H. R. Pierson & Son’s bank? (Objected to.) * * * No, sir. No, I didn’t consent that he might use it. I didn’t know that he had done so. 1 knew nothing about it until the bank had failed. ” '
I .think the. question was properly allowed to be answered, as calling for a fact; that the case was one w'here the plaintiff could properly show a negative. It was competent for the plaintiff to establish the fact that the withdrawal of the funds by the defendant was not done with his consent. This fact could only be shown in the way allowed by the referee. See Crane v. Baudouine, 55 N. Y. 263; Huggans v. Fryer, 1 Lans. 277; People v. Tubbs, 37 N. Y. 589; Crouse v. Garlock, 45 How. Pr. 85. There are other exceptions taken not necessary to be considered. The judgment should be affirmed, with costs.
HERRICK, J., concurs.
Dissenting Opinion
(dissenting.) The complaint in this action alleges that the plaintiff delivered to the defendant $1,000, with direction to him to deposit the same with the firm of H. R. Pierson & Son, to remain there on interest for the benefit of the plaintiff, and that the defendant did deposit the same with said firm. That defendant had no interest in the money, but the same belonged to the plaintiff. The complaint charges that the defendant afterwards wrongfully withdrew this money from said firm, and wrongfully converted the same to his own use, and demands judgment for $1,000, and interest. The answer denies, in substance, that the defendant agreed to deposit this money for plaintiff, and alleges that the plaintiff directed that defendant should deposit the same to his own credit, as his own, and that the plaintiff was to look to him for the same. The answer also alleges that, from time to time, the plaintiff called upon the defendant for payments on account of said money, and received from the defendant various payments on account of the same. The answer also sets up offsets and counterclaims. The main question'litigated in this action was whether the money was received by the defendant in the nature of a loan, to be deposited with the defendant, to be accounted for by him to the plaintiff, or was received by him solely for the purpose of being by him deposited with Pierson & Son in the name of and to the credit of the plaintiff, and subject only to his check. If the latter, then his withdrawing it from the bank in his own name was a conversion; if the former, then the title to the money vested in the defendant, and he became the debtor of the plaintiff in that amount, and was liable only for money had and received, and an action for a conversion of this money would lie. To constitute
The first question presented by the case is, was there any unlawful taking of the check deposited ,in the bank of Pierson & Son? Second, was there a conversion of said property by withdrawing this money from the bank by defendant? The whole tenure of the evidence seems to be that the plaintiff delivered the pension check to the defendant to be deposited by him, in his name, in the Pierson Bank, as he had already accounts with that bank; and, as the plaintiff could not draw checks for the same in his own name, the money was to be deposited in the name of the defendant, and the plaintiff was to look to him for money when he wanted the same. This appears directly from the testimony of the defendant, and his theory is strongly corroborated by the testimony of William J. Vrooman, Mead J. Vrooman, John F. Shafer, and Albert C. Judson, as well as the reasonable inference to be drawn from the fact that whenever plaintiff wanted money he called on the defendant for the same, instead of the bank, and never applied to the bank for any money. The case shows that he asked for and received, from time to time, dif
As "we have seen, the complaint does not allege the conversion of the pension check, but charges the .wrongful withdrawal and conversion of $1,000 from Pierson & Son, bankers, and for that amount plaintiff is allowed to recover. The evidence shows that, at the time of the commencement of this action, the defendant had standing to his credit in this bank $1,426,31, out of wdiich at that time he had drawn the sum of $1,253.05, leaving a balance in the bank of $182.26. If the conversion of this money consists in its withdrawal from the bank, as charged in the complaint, then the sum remaining in the bank was the money of the plaintiff, and the defendant could only be charged with the conversion of the $1,000, less the sum of $182.26, so that the recovery, upon the plaintiff’s theory, should have been only for the sum of $317.74, and interest from the time of drawing the same by the defendant. - The plaintiff cannot properly charge that the defendant drew out plaintiff’s money, and left his own in the bank, especially in the absence of proof upon that subject. Nor can he, for the.purpose of assuming that position, recover for the conversion of this check, when he claims in his complaint to recover only for money improperly drawn out of the bank, and not for the conversion of the check, or of the money, by depositing it in the bank in his own name. If this action had been prosecuted for the conversion of this money by the defendant by depositing it in the bank in his own name; and no charge had been made for the withdrawal of it by the defendant, the plaintiff would most signally have failed upon the proof, and hence the plaintiff makes no charge of the conversion of the .money, by the defendant by depositing the same in his own name; and, as the wrong charged consists in the "withdrawal of the money, the defendant could, in any event, only be charged with so much as the proof clearly established was withdrawn by him ; and, as he was permitted to recover for $182.26
“Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them.” “If a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather ensnare and mislead his adversary. ”
In Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. Rep. 698, the court say:
“It is a fundamental rule that the judgment shall be ‘secundum allegata et probata;’ and as was said in Day v. Town of Mew Lots, 107 M. Y. 148, 13 M. E. Rep. 915, any departure from that rule is certain to produce surprise, confusion, and injustice. ”
This fundamental and elementary rule was clearly departed from by the referee in this case. The defendant was not charged in the complaint, either in direct terms or by implication, with receiving this money in a fiduciary capacity, and yet the referee expressly refuses to find, on the request of the del'endant, that the same was not so received and held by the defendant, and thus, in effect, held that the defendant received and held this money in that capacity. In Hillis v. Bleckert, (Sup.) 6 N. Y. Supp. 405, which was an action for the conversion of money, Brady, J., says:
“There rs no allegation in the complaint that the money mentioned was received by the defendant in a-fiduciary capacity, and it is therefore deficient in an essential element. A statement of facts and circumstances which might justify the legal conclusion of money received in a fiduciary capacity does not comply with the statute, inasmuch as it requires such allegation to be made in the complaint, and declares that the plaintiff cannot recover unless he proves the same on the trial. ”
It is true that this was said when an order of arrest was applied for, but it at the same time illustrates - the rule of pleading in actions of tort for the conversion of money which comes to the possession of the defendant with the consent of the plaintiff. I am also of the opinion that the referee in this case erred in the admission of copies of the bank books in evidence. The stipulation, at most, only made the copy evidence if the books themselves were competent under the proof. This made it incumbent on th.e plaintiff first to prove in the regular way the authenticity and correctness of the books, before the transcript could be received in evidence. That was not done in this case. It can hardly be claimed that the bare production and proof of identity of the books of
“The books of a bank, like those of a merchant or shopkeeper, must be proved by supplementary proof, oath of some officer or agent of the bank; and before the books of a bank can be received, it must be proved or admitted that the entries were made by an authorized clerk or agent. ”
No such proof was given or offered in this case, and, the proper foundation for the introduction of the books not having been laid, the transcript was not, by the stipulation, made evidence. I am also of the opinion that the question put bjr the plaintiff’s counsel to the plaintiff, “Did you consent that Mr. Vrooman should draw this one thousand dollars from H. R. Pierson & Son’s Bank?” was not proper, and that the admission of the answer, under defendant’s objection, was error. Whether or not he consented, and what amounted to a consent, was the principal-question to be litigated in this case. That question was to be determined by the referee from the facts, circumstances, and conversations relating to the entire transaction; and, while it was competent for the-plaintiff, as a witness, to tell what was said, it was not, I think, competent for him to give a sweeping conclusion determining the whole theory of the defendant’s defense. He should have been confined to giving the conversations, and the referee should make his ■ deductions from the same. In Teerpenning v. Insurance Co., 43 N. Y. 281, Allen, J., says:
“As a rule, witness must state facts, and not draw conclusions or give opinions. It is the duty of the jury or the court to draw conclusions from the evidence, and form opinions from the facts proved. ”
I am therefore of the opinion that the judgment should be reversed, and the referefe discharged, and a new trial granted, costs to abide event.
