Hunt v. Kane

Barnard, J.

In these cases 'the evidence does not so greatly preponderate against the facts found as to call for a reversal, on the ground of any of the findings of fact being against the weight of evidence. The appellants, however, on the facts found, insist that the judgment is erroneous, because they claim that those facts show the conversion by the defendant of the notes in question, and this is claimed on two grounds: 1st. That the defendant having refused to deliver the notes on demand, did thereby convert them. 2d. That the defendant having promised to procure the notes from those who rightfully held them, and deliver them to the plaintiff, and the plaintiff having thereupon consented to his so procuring the notes, his not procuring and delivering them amounts to a conversion of them by him.

As to .the first ground, the defendant never had any possession of or control over the notes, except as the agent of one who is entitled to hold them; consequently his refusal to deliver them on demand, could not constitute or be evidence of a conversion. As to the second ground, the omission or neglect to perform the promise cannot constitute a conversion of notes which the defendant never had in his possession, and over which he never had any control, and the possession of and control over which, so far as appears, he was never able in his individual capacity to obtain. If there is a sufficient consideration for the promise, the defendant may be liable to an action for a breach of his contract, but he cannot under these circumstances be held for a conversion, on the ground of his not fulfilling his promise.

The judgment should be affirmed, with costs.

Sutherland, J. concurred.