Ewell v. Gillis , 14 Me. 72 ( 1836 )

After a continuance, nisi, the opinion of the Court was drawn up by

Weston C. J.

The authorities cited on both sides, establish the position, that where trover is brought for a bond, or other instrument in writing, a very general description of it only is required to be averred and proved. This requirement would have been sufficiently satisfied, by setting forth and proving that the note in controversy was valuable, that it was signed by Hodgdon and Jefferds, and made payable to Nathan Winslow. So much was done. But the declaration further describes the amount of the note, for what period it was given, and that it was payable to Winslow or order, with interest. It also avers, that there was an indorsement on the note, stating the time and the amount. Of these averments there was no proof whatever, except, perhaps, as to the amount of the note, the testimony upon this point, although not precise, having some tendency to prove that averment, or if not, not being necessarily inconsistent with it.

And the question is, whether the plaintiff having, as it respects the subject matter of the suit, averred and proved all that is legally required of him to maintain his action, is to be defeated, because he fails in proof of other more particular averments, unnecessarily introduced. The origin of the opinion, that such proof is necessary, is to be found in the case of Wilson v. Chambers, Cro. Car. 262. It was error on a judgment in the Common Pleas, in an action of trover for a bond of one hundred pounds, conditioned to pay fifty. It was assigned for error, that no date of the bond was mentioned, but die Court held the error not well assigned, for the bond being lost and converted, the plaintiff might not recollect its date ; and if he had misrecited it, it would have occasioned the failure of bis suit.

In Bissel v. Drake, 19 Johns. 66, there was a variance between the averment and proof in the description of the note, which was held to be fatal. And if an entire failure of proof in such particulars, unnecessarily averred, is to have the same effect, the plaintiff is not entitled to retain his verdict. But it appears to us that there is a manifest difference between a failure, and a variance in proof. By the latter, the identity is disproved; by the former, the force of what is proved remains unimpaired. It is hazardous, as stated by the Court, in the case from Croke, to attempt to describe particularly a written instrument from memory, because, if misrecited, the action is defeated. But it would seem, that before such a result is to follow, such misrecital should be made to appear. The defendant has it in his power to make it appear, by the production of the instrument; hence the danger of a particular description. An action of trover for an instrument, is a very different thing from an action of assumpsit on the same instrument. The plaintiff proved, that he delivered to the defendant a note, signe'd by Hodgdon and Jefferds, payable to Nathan Winslow; and he introduced proof also as to its value. This was sufficient to maintain the action, if he also proved that the defendant, without right, converted that note to his own use. And the force of that proof is not at all weakened by his failing to prove other particulars, unnecessarily averred in the declaration. And we are not satisfied, that this objection ought to prevail.

The witness, called by the plaintiff, was as competent to prove the existence and general description of the note, as one of the parties. He saw it, and heard it read. A party might have had its contents more perfectly in recollection ; but his testimony would not have been evidence of a higher character. Each side endeavored to take advantage of the non-production of a party to the note; and the Judge in summing up, stated the argument of each, leaving it to the jury to determine how far any inference was to be drawn from that circumstance, to the prejudice either of the plaintiff or the defendant.

The defendant received the note from the plaintiff, and promised to collect it for his use. This was evidence of property in the plaintiff; and there was nothing to disprove it.

The witness could not recollect the precise day of the demand. It was either in August or September. He went from the office of the attorney, who brought the action, with the plaintiff to witness the demand. We think there can be no reasonable doubt, that this was done with a view to the action ; and that the jury were therefore well warranted in the conclusion, that it was prior to the suit, which was instituted on the ninth day of September.

The note was not redelivered to the plaintiff, upon his demand. This was evidence of a conversion, proper to be submitted to the jury. The defendant said he had not collected the note, he might have lost it, it might be among his papers, and he would try to find and return it. All this went to the jury; but they were not bound to believe it all. Hart v. Ten Eyck, 2 Johns. Ch. R. 90; Roe v. Furors, 2 Bos. & Pull. 548. His counsel, in opening his defence, had stated, that the note was Winslow’s property, and that the defendant had settled with him.

Upon the whole, we cannot perceive, either that the jury were erroneously instructed, or that the verdict is against the weight of evidence.

Judgment on the verdict.