Norton v. Kidder , 54 Me. 189 ( 1866 )

Danfokth, J.

-The verdict of the jury establishes the fact that the plaintiff sent to the defendant the sum of $200 for a special purpose, and that the defendant received the money, knowing the purpose for which it was sent, and immediately misapplied it. It is, however, contended that the action cannot be maintained, and certain instructions to this effect were requested. First, it is alleged that the defendant was cashier of the Bank of Somerset, and that, as such, he received the money for and in behalf of the bank. It will be noticed that this money was not sent to the defendant to be paid to the bank absolutely, but only on condition, which condition was not complied with; all of which was within the knowledge of the defendant. He therefore paid it into the bank without authority and in his own wrong. It was a misfeasance from the consequences of which, according to well settled principles of law, his agency cannot screen him. For which reason the first requested instruction was properly refused.

The second requested instruction may be good law, but is not applicable to this case. The $200 note, referred to, was not payable when the money was sent, and the defendant, as he had a right to do, refused to apply the money to its payment. In no sense, then, could the note bo said to have been paid, and, if sued, the action could not have been successfully defended on that ground. Besides, the present suit was commenced to recover the mouey sent, and no claim is made for any part of the money paid on the note.

No question of voluntary, or involuntary payment is presented, and the second requested instruction was rightfully withheld.

The third requested instruction is similar to the first. The final payment of the $200 note is of no consequence, except as proof of the continued misappropriation of the money sent.

From these principles it necessarily follows that the instruction given is correct. The money was sent by the plaintiff to the defendant for a particular purpose, which purpose was communicated to him. He declined compliance with the request, and immediately applied it to another purpose. Whether defendant applied it to his own use or to that of another is immaterial, as, in either case, it is equally withheld from the plaintiff, to whom it belongs. Neither is he relieved by the fact that he paid a debt of the plaintiff with it, for without his (plaintiff’s) assent, he had no more right to do this than to pay the debt of any other. In a legal view the plaintiff was damnified; for his money, to which he was entitled, immediately upon defendant’s refusing to comply with his request as to its appropriation, has been withheld from him. The amount which he is entitled to recover, is the amount withheld and interest in accordance with the instruction.

Exceptions overruled. — Judgment upon the verdict.

Appleton, O. J., Kent, Walton and Dickekson, JJ., concurred.