Conceding the logic of the theory espoused by the majority, I am still unconvinced and believe it my duty to register dissent.
I refuse to hurdle or build a road around the Negotiable Instruments Law. To permit recovery on the theory of conversion and deny it in assumpsit is simply providing an ingenious legal escort to conduct the true owner of a check to a judgment which I believe the Negotiable Instruments Law prohibits.
As I view the case and the question presented, it is simply a case of where A, a depositor in B bank, draws a check payable to C on B and delivers it to C or his agent, D. D indorses the check and cashes it at B bank. C, admitting that he cannot sue directly on the check or in assumpsit as for money had and received because there is no privity of contract as between C and B, alleges in trover and seeks damages for the conversion.
The case of First National Bank of Washington v. A.F. Whitman, Adm'r, 94 U.S. 343, *Page 233 24 L. Ed. 229, decides that issue of fact.
I believe that it is consistent with the purpose and spirit of the Negotiable Instruments Law to adopt the view of the United States Supreme Court as laid down in the Whitman Case irrespective of the theory under which the proceeding was instituted. In this there is no hardship. Each party to a check transaction has his remedy. The Negotiable Instruments Law was adopted for the purpose of uniformity, and it is important to the commercial life of this nation that a uniform rule of construction should be adopted by the different jurisdictions in determining the rights of all parties to a negotiable instrument.
To permit recovery in trover and deny it in assumpsit is to circumvent the intended purpose and spirit of the Negotiable Instruments Law, and extend the common-law fiction of pleading in trover to an extent that even the pleaders during the time of Bracton dared not indulge, and with which I am not in accord.
We say to the payee, "You cannot sue in assumpsit, but if you will declare as in trover, we will let you recover." Although we still seek to adhere to common-law modes of distinction as between tort and contract actions, and as between legal and equitable remedies, yet in spirit as a Code state we must look to the redress sought, rather than the form adopted, by the pleader to determine the rights of the parties.
I dissent.