Herring v. Tilghman, 35 N.C. 392, 13 Ired. 392 (1852)

June 1852 · Supreme Court of North Carolina

35 N.C. 392, 13 Ired. 392

WILLIAM HERRING vs. JOHN TILGHMAN AND OTHERS.

A, Raying possession of a Note, payable to one B, and not indorsed, and claiming the property therein, placed it for collection in the hands ofC; who con - orted the proceeds to his own use. Held, that A could not support an action of trover against C, either for the Note or the proceeds, because he had not .he legal title to either.

To maintain trover, the plaintiff must shew title, or a right of possession, the owner being unknown.

The cases of Barwiclc v. Harwich, 11 Ire. 80 and Fairly v. McLean, 11 Ire. 158, cited and approved.

Appeal from the Superior Court of Law of Lenoir County, at the Spring- Term 1852, his Honor Judge Setti.e presiding.

This was an action of travel', brought by the plaintiff against the intestate of the defendant, in his lifetime, for the conversion of a note for two hundred dollars against one Jonathan Rouse, claimed as the property of the plaintiff. The plaintiff declared, 1st, upon a conversion of the note; 2d, upon a conversion of the proceeds of the note, the same having been collected from Jonathan Rouse, by the defendant’s intestate, and converted to his own use. Pleas, Gen - eral issue and Stat. Lim. Upon the trial the plaintiff introduced one Abram Congleton, to prove that he, the plaintiff, placed in the hands of the said witness, who was at that time a constable in the County of Lenoir, for collection, a note or bond payable to one William D. Mosely against Jonathan Rouse for two hundred dollars, which note bad not been endorsed by the payee, but the plaintiff claimed it as his property; and alsq to prove that the said witness pledged the said note, with another for the sum of $100, to the defendant’s intestate, who collected the same from Jonathan Rouse, and appropriated the proceeds to his own use. The defendant objected to the competency of this witness, on the ground of his direct interest in the event of the suit, for that the said witness was himself liable to the plaintiff, having sold the note in controversy to the defendant’s intestate, and would be exonerated therefrom by the recovery of the plaintiff against the defendant in this case. The witness was not released by the plaintiff. The Court rejected the witness, holding that he was interested in the event of the suit and therefore incompetent. Thereupon the plaintiff submitted to a nonsuit and appealed.

J. W. Bnjan and J. H. Bryan for the plaintiff.

W. H. Haywood for the defendant.

Pearson, J.

It is unnecessary to decide the question of evidence, raised by the plaintiff’s exception: because, supposing him entitled to the evidence, the action cannot be sustained. The first conni, for the conversion of the note, cannot be sustained: because, by the plaintiff’s own showing, he is not the owner of it; the legal title being in Mosely, ■and he alone is recognised as the owner in a Court of law, and the plaintiff is considered as a mere agent authorized to receive the money and to bring suit in the name of Mosely. The property in a note payable to A, or to A, or order, can ■only be transferred at law by endorsement. Fairly v. McLean, 11 Ired. 158.

The second count, for the conversion of the proceeds of the note, viz: the money collected by the defendant, cannot be sustained; because the plaintiff is not the owner of the money, and has-no more right of property in it than in any other parcel of money of the same amount, tie never had it in possession, and it was not collected for him. To maintain trover the plaintiff must show title, or a right of possession, the owner being unknown. Barwick v. Barwick, 11 Ired. 80.

In many eases, when one converts the property of another and receives the money-for it, the party is allowed to waive the “ tort,’* and bring an action for “ money had and received,’’ treating the defendant as'his agent, and placing the transaction on the ground of contract. This is called an “equitáble action,” and has been carried very far to meet what is supposed to be the justice of the case. Possibly, by a stretch of the doctrine,the plaintiff could maintain an action for “ money had and received,” treating the defendant as the agent of the constable, who was the plaintiff’s agent. It would, however, require very strong authority to induce this Court, so to extend the doctrine, in face of the fact, that the defendant was acting for himself as a purchaser. The idea that trover, which is an action ex delicto, can be maintained for the money collected by the defendant, not only violates all principle, but receives no countenance from any authority or intimation to be met with in the books.

Per Curiam. Judgment affirmed.