dissenting. The majority’s effort to show that an open account can be converted by the taking of the creditor’s account book seems to me wholly unnecessary. It has long been the rule that choses in action such as an open account cannot be the subject of conversion, but of course this does not mean that the injured person is without a remedy. “Obligations not merged in a document are not the subject of an action to recover damages [for conversion] under the rules stated in §§ 223 to 241, although interference with or appropriation of such obligations may make liable an actor under some other rule of laiv.” Rest., Torts, § 242. Ever since the decision in Lumley v. Gye, 2 Ell. & Bl. 216, 118 Eng. Beprint 749, it has been recognized that one who wrongfully interferes with another’s contract is liable in tort. I have no difficulty in extending this principle to the wrongful taking of a merchant’s account book, but I see no need for distorting the definition of conversion in order to reach the same conclusion.
My principal disagreement with the.majority goes to the question of whether Terry proved damage equal to the sum allowed by the jury. On this issue the majority says: 11 ‘When Terry’s book containing his accounts was taken, he was effectively denied the ability to establish his claims against his debtors just as thoroughly as if promissory notes executed to him by his debtors had been taken from him.” This speculation may be true; but there is no evidence to support it, and Terry had the burden of proof. He himself testified that ninety per cent of his customers had traded with him on credit for twelve or fifteen years. I rather doubt the validity of the majority’s assumption that patrons of such long standing would have unanimously seized upon the absence of the account book as a pretext for repudiating their debts to the store. But in any event the burden of proof was on Terry, and he has not shown the slightest effort to collect these accounts, much less that the loss of the account book has adversely affected the possibility of collection. Thus it will not do to say that the taking of the account book establishes a loss of $4,500 merely because the amount of the open accounts exceeded that sum.
As an alternative to the above theory, which is unsupported by proof, the majority put in Footnote 9 a summary of evidence showing that at least $4,500 may have been collected by some one between November 29 and January 10. This is true, but if the judgment is to rest on that evidence it was plainly error for the court to refuse a requested instruction that would have submitted to the jury the question of the amounts actually collected.
In Footnote 3 the majority conclude that this instruction was erroneous for the reason that it limited Terry’s recovery to the sums collected and paid over to the defendants, the implication being that the defendant; would also be liable for money collected by their agents but not paid to them. In the circumstances this limitation was entirely proper. The facts are that the agents in question were Terry’s wife and daughter, who alone collected accounts during Terry’s absence. Terry’s own theory of his case, as reflected by his pleadings and his proof, has never included the notion that he was seeking to recover amounts collected by his family and retained by them. No such suggestion has been made by counsel, nor could it have been advanced in this court for the first time. Yet the affirmance of the judgment upon the premise contained in Footnote 9 amounts to saying that the jury, in disregard of both the pleadings and the evidence, undertook to unjustly enrich the Terry family by permitting Terry to recover for amounts collected by his wife and daughter and not paid over to the defendants. I'think the requested instruction would have fairly submitted to the jury the real issue that was in controversy, so that its refusal constituted reversible error.