Jones v. Farley , 6 Me. 226 ( 1829 )

Mellen C. J.

delivered the opinion of the Court.

It is evident, from the statement of facts, that the promissory noto, for the conversion of which this action was ’brought, was then the property of the plaintiff; and we must, in a case submitted as this is to our decision, consider the demand of the note, and the defendant’s refusal to deliver it to Estabrook, as evidence oí a conversion, entitling the plaintiff to maintain the action, unless the other facts agreed furnish a defence. Viewing all the circumstances we think there was authority given by the plaintiff to John Jones to settle the account with Mr. Weston in the manner above mentioned, with or without the assistance of the defendant. And that as the note taken on the settlement, was placed in his hands by the assent of Jones for collection, all sums collected and paid over to John Jones, were paid to him lawfully, and must be allowed to the defendant; but we are also of opinion that the agency of Jones did not authorize him to speculate on the note or appropriate it to his own use by pledging it to the defendant as security for his liabilities at the bank. This was no part of his duty, and that transaction could not bind the rights of the plaintiff; he had authority to reclaim the note at his pleasure; and the order which he drew in favor of Estabrook upon the defendant, and the presentment of it to him and the demand of the note by virtue of it, amounted to a revocation of the power he had given to Jones and consequently of the derivative authority of the defendant; it not appearing that he had any legitimate lien upon it. Our opinion therefore is that a default must be entered, according to the agreement of the parties, and judgment be rendered for the amount due on the note at the time of the demand and refusal. •The parties will ascertain that sum, and the clerk is directed to enter the judgment accordingly.