Goochie v. Brock ( 1879 )

The opinion of the court was delivered by

Veazey, J.

The plaintiff’s counsel argues that Abbott converted the $65 to his own use, while it was the defendant’s money, by having the check credited to Abbott’s account in the bank, instead of getting the money on the check as ho was expected to do, and that therefore he did not hold it as a simple depositary for the plaintiff, when the agreement was made between the plaintiff and Abbott that the latter might have the use of it for thirty days. We think it is immaterial whether Abbott had the money on deposit in the bank, or had it in his pocket, when he and the plaintiff made that agreement. Both parties recognized, as the fact was, that Abbott had it as money paid by the defendant to Abbott for the plaintiff. The latter then assumed to deal with it as his own money by loaning it to Abbott. The legal effect of that transaction was just the same as though Abbott had gone through the form of handing the money over to the plaintiff, and he had returned it as a loan to Abbott. It was an appropriation of the money by plaintiff, therefore a completion of the payment by the defendant. What took place between them ten days after-wards, shows that the plaintiff so regarded it.

Judgment affirmed.