Crohon & Roden Co. v. Rudnick

De Courcy, J. The demurrer to the plaintiff’s amended declaration was sustained, and judgment entered for the defendant. On this appeal we cannot consider the bill of particulars which was filed in connection with the original declaration. The demurrer to the first count was sustained rightly. The contract alleged is one between the plaintiff and the Bay State Leather Company, which was to sell the plaintiff’s property and turn over to him the identical proceeds. The alleged promise of the defendant, a director and treasurer of the corporation, to turn over to the plaintiff the identical checks received by the — 557 — corporation, was without consideration. See, in that connection, Cabot v. Shaw, 148 Mass. 459. The second count, on which the plaintiff chiefly relies, is in tort, for a wrong done to the plaintiff by the defendant as an individual. It alleges that the Bay State Leather Company had hides belonging to the plaintiff, which it agreed to turn into leather; the title to the hides and leather to remain in the plaintiff until sold, and the “identical proceeds” from such sales immediately to be turned over to the plaintiff. It further alleges that the defendant knew these facts, agreed that “ the identical checks received” by him from the sales should be turned over to the plaintiff, and nevertheless used or allowed to be used for other purposes the checks which he received. Assuming the allegations to be true, for the purposes of the demurrer, the checks "were the property of the plaintiff, for whom the defendant held them in trust; and the unauthorized exercise of dominion over them, with intent thereby to appropriate them to the use of himself or others, and so deprive the owner of them, would render the defendant liable as for a fraudulent conversion. Judson v. Adams, 8 Cush. 556. Commonwealth v. Moore, 166 Mass. 513. It follows that the demurrer should be sustained as to the first count, and overruled as to the second count. Ordered accordingly.