Wheeler v. . Allen

It appeared by the testimony of the plaintiff that he, in the spring of 1862, and again in 1864, placed the sum of $1,000 in the hands of the defendant for investment in scrip of the Great Western Insurance Company, both of which sums were represented by him to have been so invested. The first investment was paid off in February or March, 1865, and the avails thereof, with the interest thereon, were received by the defendant, with instructions from the plaintiff to reinvest the amount in the same kind of scrip, that was to be issued in April following, and the defendant stated that such reinvestment was also made. The scrip in which the second and last investments were made is that for the recovery whereof this action is brought. After this was shown, the plaintiff was asked whether, before bringing this suit, he asked the defendant for the scrip. This question was objected to on the ground that there is no allegation of demand in the complaint. The court ruled that no such allegation was necessary. This *Page 40 ruling was excepted to, and he then testified that he had a conversation with the defendant before the action was brought, which, as it is material on the question of demand, it is useful to set forth, and is as follows: "I said to Mr. Allen, `something might occur between us, and I would rather it would stand in my name;' Mr. Allen remarked `you had better let it remain as it is;' he seemed inclined to act indifferent about it; says I, `Mr. Allen, I will be in the city again in two or three weeks, and then I would like to arrange this thing;' in probably three or four weeks I was here again; I went down and told Mr. Allen my business; `now,' says I, `I would like to arrange that scrip business;' says he, `I cannot do anything about it;' says I, `why not?' says he, `it is in such a shape that I cannot do anything about it;' I tried to ascertain the shape in which it was, but he would not give me any satisfaction about it; says he, `I have got business out, and cannot attend to it;' I followed him to the steps; says I, `Mr. Allen, you must be very confident — I am not easy, under the circumstances, to let this remain so;' he gave me no satisfaction, and says, `I shall not do anything about it,' and wheeled and went off." He subsequently stated: "Mr. Allen has never given any of that scrip back to me." On his cross-examination, he, in answer to a question whether the defendant held the scrip, said: "I presume he did; this was what I always supposed; it was never in my name that I know of." After some additional evidence in relation to the leaving of the money for investment, and the value of such scrip in 1864 and 1865, the plaintiff rested his case. Thereupon the defendant's counsel moved to dismiss the complaint on the following grounds: 1st. No demand has been made for the delivery of this property previous to the commencement of this action. 2d. The defendant was not in possession of the scrip at the time the suit was brought, and the plaintiff's remedy was an action for conversion. *Page 41 3d. The plaintiff must have a clear legal right of possession to the article demanded before this action can be brought. 4th. That the property of which the plaintiff claims the delivery has not been specified or identified. 5th. That the plaintiff has not proven or alleged facts sufficient to constitute a cause of action. This motion was denied, and the defendant excepted to the decision. This exception was well taken. It is not alleged in the complaint, nor is it shown by the evidence, that any particular scrip capable of identification or of any certain designation was ever purchased for the plaintiff, and it is certain that none is shown to have been taken in the name of the plaintiff. It was, therefore, impossible to adjudge the delivery by the defendant to the plaintiff of any specific scrip. For the same reason, a demand, which was necessary to the maintenance of this action, could not and consequently was not made. The only testimony bearing on that question is what I have above set forth. That does not profess or purport, in any form, to point out or call for any certain designated scrip. The object of the conversation in reference to it was to have the investments, which were reported by the defendant to have been made for the plaintiff, so designated by having the scrip placed in his name. He expressed a wish "to arrange that scrip business," saying, among other things, that "something might occur between us, and I would rather it would stand in my name." The application was for a settlement of the transaction between them, and can in no sense be construed into a demand for any certain or specific scrip. An objection was distinctly taken, that there was no such demand either alleged or proven, and also that on the trial there was an entire failure to show that the defendant held any particular scrip to which he could assert the right of possession. The views above expressed lead me to the conclusion that the motion to dismiss the complaint should have been granted and that the General Term properly ordered a new trial. *Page 42 That order must be affirmed with costs, and judgment absolute against the plaintiff pursuant to his stipulation.