Fischesser v. Heard

McCay, J. We do not see why the second count in this declaration is not good as it stands. It sets forth that the defendant is in possession of $500 00 in gold, belonging to plaintiff, which he refuses to pay. Will not the law, on this state of facts, imply a promise? But, in our judgment, the first count is good, with but a slight amendment. It is not clearly stated that the plaintiff was the owner of the money at the time of the pledge, or that it was intrusted to J. B. Fischesser for this special purpose. If the count were amended so as to state this, we think it would be good. Property may be lent for a special purpose, and if so, it can only be used for that purpose: Revised Code, section 2108. If this were a horse, or personal property, other than money, there would be no trouble, since it is a settled rule that the true owner may pursue his property, or its value, into whosever hands it may come. If the money did not belong to J. B. Fischesser — if he held it, either tortiously or as bailee for a special purpose, and has deposited it with the defendant, in accordance with that purpose, in either case the true owner has a right to recover it. If Fischesser was a tortious holder, clearly the right of the true owner to recover exists. If he was a bailee, and has tortiously deposited it with the defendant, the same right exists. Can it make any difference that the deposit was with the consent of the true owner, or that the true owner has ratified the act of the depositor? We think not. As this is money, if Heard received it without notice of the want of title in J. B. Fischesser, he would have a right to retain it so long as he was liable, under the bond : Revised Code, section 2595. But Heard has no rights, now, to the money, because he is discharged from the bond. As a matter of course, if this was a general loan by the plaintiff to J. B. Fischesser, her rights are gone; she is only a creditor, and the title to the money was in J. B. Fischesser. [534] Our judgment is put on the ground that it may be alleged and proven that the money was bound to be pledged in this way, and for this special purpose. If this be so, we hold that, when the purpose has been fulfilled, the true owner has a right to recover. Or if Mrs. Fischesser, being the true owner, J. B. Fischesser, without any authority, took the money and made this pledge, even then, under the state of facts as set forth, to-wit: that the object of the pledge has been fulfilled, the true owner may assert her rights. As the thing pledged is money, it passed to the pledgee, even without authority from the owner, and he had a right to retain it so long as he was liable on the bond, but when the bond was complied with, he stood in no better position than J. B. Fischesser did. Judgment reversed.