Gordon v. . Hostetter , 4 Abb. Pr. 263 ( 1867 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The action was not for the recovery of the specific money embezzled. It was to obtain damages for the defendant's wrong, in taking from the plaintiffs and converting to his own use coin and bills of a specific value and amount, which were alleged and proved to be their property. By taking and retaining their money, he put it out of their power to distinguish it from other like coin and bills; and while he admitted the amount taken, he claimed that he was not answerable for the wrong, until they so described what he had embezzled, as to enable him to identify it. The court not only sustained this view, but also held that under a complaint alleging the facts, and upon proof of their exact truth, he was not responsible for the amount, even as for moneys had and received. We think the decision erroneous; and, that the judge was right, in the first instance, in directing a verdict for the full amount in favor of the plaintiffs.

Money is as much the subject of conversion as any description of personal chattels. Under the ruling of the court in this case, a party appropriating it wrongfully would ordinarily be secure of immunity. No one, in the practical affairs of life, retains a specific description of each bill which comes to his hands. Our statute of embezzlement assumes this, in making it a criminal offense, in a clerk or servant, to "convert to his own use" the money of his employer, or, "to make away with or secrete it," with intent to convert it to his own use. (2. R.S. 678, § 59.) If the fact of the unlawful taking be established, and the amount converted is ascertained, the culprit cannot avail himself of his own act, in secreting or destroying the bills, as a protection against civil or criminal prosecution.

In the present case, the fact was established by the admission of the defendant that the money which he took was the property of the plaintiffs; and, as the amount was conceded, there was no occasion to prove the particulars, in which the coin and bills in question differed from all others of like denomination. The evidence supplied every fact essential to show the conversion, and to fix the measure of damages. The money was identified so far as was needful to determine the rights of the parties; and the plaintiffs were bound to go no further. A similar objection was raised in this court, in an action of replevin for bank-bills, which were not so described in the pleadings and proofs as to distinguish them from other similar bank-bills, but which corresponded in amount with the money wrongfully withheld. The appropriate answer was given by Judge GROVER, who delivered the opinion of the court: "All that is necessary is, that the proof should be sufficient to enable the court to give judgment for the delivery of the particular thing to which the plaintiff is entitled; and if the defendant has so disposed of that thing that delivery cannot be made upon the execution, then the value is to be collected of the defendant in satisfaction of the judgment." (Dudley v. Graves, 20 N.Y. 80.) So, in this case, all that the court could require was, proof of property in the plaintiffs, of conversion by the defendant, and of the damages resulting from the wrong.

It was held, in an early case, that trover "lies not for money found, unless it be in a bag or chest." (Holiday v. Hicks, Croke's Eliz. 661.) But in another cause, determined two years afterward, where the plaintiff obtained a verdict for the conversion of part of the contents of a bag of gold, a motion was made in arrest of judgment, on the ground "that trover and conversion of money out of a bag cannot be good, because it cannot be known." The judges held, "that an action of trover and conversion of money only, was good enough; and an action well maintainable for it." (Draycott v. Piot, Croke's Eliz. 818;Hall v. Dean, id. 841.)

All doubt on the question, arising from the legal fiction of loss and finding in the old action of trover, was set at rest in a subsequent case in the exchequer chamber. The objection was there taken, that the action would not lie for money out of a bag, which from the nature of the case could not be identified. "But," says Croke, "all the justices and barons agreed that it well lies; for, although it was alleged that money lost cannot be known — and so, whether it was the plaintiff's money, whereof the trover and conversion was — yet, the court said, it being found by a jury that he converted the plaintiff's money, the plaintiff had good cause of action; wherefore the judgment, before well given, was now affirmed. The justices and barons said, that this action lies as well for money out of a bag as of corn which cannot be known. (Kinaston v. Moor, Croke's Charles, 89.) The doctrine of this case has since been accepted as settled law; and trover has been repeatedly held to lie for the conversion of determinate sums, though the specific coin and bills were not identified. "The design of this action," as was well said by Bacon, "is not to recover a thing in specie, but to recover damages for the conversion thereof." (7 Bacon's Ab. 807, Trover D.; Chitty on Pleading, 169; Jackson v. Anderson, 4 Taunt. 24, 29; Kimberly v. Patchin, 19 N.Y. 336; Dows v.Bignall, Lalor's Suppt. 407; McNaugton v. Cameron, 44 Barb. 406.)

The case of Orton v. Butler, on which the respondent mainly relies, is irrelevant to the question we have been considering. It arose on demurrer to a hybrid count, in a declaration which alleged that the defendant had received ten shillings to the use of the plaintiff, to be paid to him on request; and that, upon being requested to pay it, he refused and converted the money to his own use. The plaintiff insisted that this was a good statement of a cause of action in trover. The court sustained the demurrer, holding that, to make the count sufficient in trover, he should have alleged, either that the money was his, or that it had previously been in his possession. The decision was clearly right, but it has no application to the complaint before us. (5 Barnw. Ald. 652.)

It follows from these views that the plaintiffs were entitled to the full amount of the verdict, on the basis of a tortious conversion.

It is proper however to say, that, even if we had arrived at a different conclusion on this point, we should hold the verdict good, as for moneys had and received, on the waiver by the plaintiffs of the tort alleged. It is true, that, under ordinary circumstances, the refusal to pay over money, had and received to the use of another, is not in law a conversion. It does not, however, follow from this, as a counter proposition, that, under our present system of pleading, a party who has alleged and proved facts, entitling him to judgment as for moneys had and received, will be barred from that relief by his failure to prove other and further allegations, which would have entitled him to a more stringent remedy. The material averments of the complaint in this regard, were fully sustained by the proof. The facts were undisputed. The defendant was not misled or surprised; and we see no reason why the plaintiffs were not at liberty to waive the tort and amend their prayer for judgment, if they elected so to do, in view of the adverse ruling of the court. (Byxbie v. Wood,24 N.Y. 607; Wright v. Hooker, 10 id. 51; Cobb v. Dows, id. 335, 342, 346.)

The Supreme Court was clearly right in holding that, under our statute, the civil remedy of the plaintiffs was neither merged in the alleged felony, nor suspended until the conviction of the offender. (2 R.S. 292, § 2; Code, § 7.) Other objections were raised on the trial, but it is sufficient to say, that we do not consider them well founded.

The judgment should be reversed, with final judgment for the plaintiffs on the original verdict.

All the judges concurring.

Judgment accordingly.