The facts, as found by the jury, may be Briefly stated. The plaintiff made the note payable to the order of Robert Jones, for the accommodation of James Jones & Co., and Robert endorsed for their accommodation. The note was to be offered for discount at the Manhattan Bank, and if discounted the proceeds were to be used in paying notes made by James Jones & Co., and upon which the plaintiff and Robert Jones were liable as endorsers. The Manhattan Bank refused to discount the note. The defendant, Mathews, took the note and converted and appropriated it, procuring it to be discounted at a bank without the knowledge or consent of the plaintiff, or of James Jones & Co. And the jury have negatived any ratification by the plaintiff of the act of the defendant.
It is not material to inquire whether James Jones & Cowere restricted to the use of the note at the Manhattan Bank ; the material restriction was, that it should be used to raise money with which to pay off notes upon which the plaintiff and Robert Jones were liable as accommodation endorsers. Jones & Co. had no right to use the note for any other purpose. There was evidence authorizing the jury to find that after the note had been presented by Jones & Co. to the Manhattan Bank for discount, and the bank had refused to discount it, Jones & Co. notified the plaintiff of these facts and requested him to call and get the note, and that he, a few days thereafter, called for it. In the meantime the defendant had taken it. This would show that Jones & Co. made no further claim to the note, and that the plaintiff claimed the right to have it surrendered to him. The judge submitted the question to the jury, whether the plaintiff was the owner of the note at the time of the alleged conversion; by which I understand him to nave submitted whether the plaintiff was at that time entitled to the possession of the note as against J ones & Co.; not whether the note, at that time, in the hands of Jones & Co. was of any value, or that any one had any property
In Murray et al. v. Burling (10 J. R., 172), the action was trover for the conversion of a note made by the plaintiffs. The note was handed to the defendant to procure the money upon it from a third person. Instead of doing this, he used the note for another purpose. It was held that he was liable. While the note remained in the hands of Burling, it could not be enforced against the makers. It was of no more value than the note in the present case at the time Mathews took it; but by the act of passing it to a bona fide holder it became valuable. In Evans v. Kymer (1 Barn. & Adol., 528) the plaintiff was the acceptor and the bill belonged to him. It was in the possession of the drawer, and he transferred it with notice to the defendant It was held that the action could be maintained. The ease is an authority to show that it is not a good objection, that the action is brought by the maker of a note or the acceptor of the bill which has been converted.
The measure of damages was the amount which the plaintiff had been injured by the wrongful act of the defendant. The note was transferred to a bona fide holder, and the plaintiff is liable upon it; and the presumption is that he has paid it, or will pay it voluntarily, or that he will be compelled to pay it. It was his duty to the holder to pay it at maturity. He cannot relieve himself from liability without payment. It was not necessary that he should pay the note before action. His cause of action accrued immediately upon his becoming liable upon the note, and he
A general exception was taken to the entire charge. If any independent portion of the charge was correct, this exception is not available. But I see no objection to the charge, properly understood. Several requests were made to the judge to charge the jury on specified points in a particular manner. If the judge, in his charge, substantially covered these propositions, it was not error in him to refuse to charge further or different. The judge submitted to the jury correctly the matters as to which he was requested specifically to charge.
It remains to consider the sufficiency of the complaint. It was ably attacked and criticised upon the argument. It is objected that it does not state facts sufficient to entitle the plaintiff to recover the amount of the note, there being no allegation that the plaintiff had paid it or become liable on it. The objection rests upon the propositions: 1. That the paper was of no value when Mathews took it, and that it so remained until transferred to a bona fide holder; and 2. That it was necessary to aver and prove payment. These objections have been already noticed so far as the law applicable to them is concerned. It may be conceded that the note was valueless until it passed into the hands of a bona fide holder, though Evans v. Kymer (supra) seems to establish a different principle. It was not necessary to allege payment in the complaint unless it was also necessary.. to prove it on the trial. It was necessary, as I think, that the complaint should show that the note had passed into
In charging the conversion, the language is “ that the defendants converted and disposed of the note to their own use.” It is objected that this is not sufficient to show that the note had passed into the hands of a bona fide holder, so as to render the plaintiff liable upon it. It is the usual form of alleging conversion of a chattel. I certainly should have preferred a fuller statement of facts in this case, still. I think, liberally construed, the allegation is sufficient. We are required to construe pleadings under the Code liberally. The defendants converted and disposed of the note to their own use. This is equivalent to an allegation that they had negotiated the note for their own use, and in construing such an allegation, I think we should understand that it had been negotiated in the usual course of business, not that it had been hypothecated or used as a collateral security. The fact that it had been negotiated to a bona fide holder was proved upon the trial without objection.
I am of opinion that the judgment should be affirmed
The most material question in this case is, whether an action in the nature of trover can be maintained for a promissory note, which, never having been negotiated
It is objected that the complaint does not state that the defendants negotiated the note to a bona fide holder, in violation of the object for which it was made. It does allege that the defendant Mathews illegally and wrongfully took the note from the possession of James Jones & Co., and delivered it to the other defendant, and that they disposed of and converted it to their use. It was not under the former system, and is not, in my opinion, now, necessary do state the manner in which the defendant has converted property for which trover is brought; but the simple allegation that he has done so is sufficient. . Where it is once settled that negotiable paper in the hands of the maker or acceptor is the subject of an action of trover, the allegation that the defendant^ has converted it refers to some act by which such property thus situated could be converted.
There was no sufficient exception to the charge ; and as to the request to charge upon specific propositions, the matter proposed seems to me to be fairly covered by the instructions which the court gave, including ‘the points which he directed them to find specifically.
Upon the whole case, I am of opinion that the judgment ought to be affirmed.
Judgment accordingly