Donnell v. Thompson

DARGAN, J. It is contended, under the first assignment of errors, that the court erred in permitting the deposition of [444] Jesse Thompson to be read as evidence. First, because the deposition describes a note dated on the 26th of December, and the declaration describes the note as dated on the 24th. We will not inquire whether this variance would have been fatal, if the objection had been made in the court below. It is enough that this objection was not made to the reading of the deposition in that court. It is the right of the party to object to depositions, but he must point out his objections, and he cannot raise other objections in this court, than those made in the court below. A different practice would often lead to delay and injustice. See 11 Ala. R. 732. The other objection to the deposition is, that the witness speaks of declarations made by the plaintiff. The witness says, he received the note from the plaintiff, with a request to send it to Montgomery for collection, and that he received it as the property of the plaintiff. We see nothing objectionable in this; the witness states that he received the note from the plaintiff; it was certainly competent for him to state the object of his receiving it, or for what purpose it was delivered to him; and we do not see how this could be done without stating the instructions given to him, how he should dispose of the note; or the requests made of him as to its disposition by the party who handed it to him. 2. The second question we propose to examine is, whether the evidence of the possession of the plaintiff is sufficient to show such a title to the note, as will sustain this action. The note, although payable to bearer, is not negotiable by delivery merely, but by statute : in order to enable any other person than the payee of the note, to maintain an action on the note itself, he must show that it was indorsed to him by the payee. See Clay’s Dig. 326. And it is contended, that' as it does not appear that the note was indorsed to the plaintiff, he cannot maintain this action. A question very similar to this arose in the case of Clowes v. Harly, 19 John. Rep. 486. The plaintiff in that case brought trover for the conversion of a bond, conditioned to make titles to land. The bond had been assigned to him, but it was admitted that he could not sue the obligor of the bond in his own name, and if the suit was on the bond itself, it must have been brought [445] in the name of the obligee. Yet the plaintiff was permitted in this form of action, to recover the value of the bond, which was estimated by the value of the land. This authority shows, that the owner of a note, or bond, .may bring trover for its conversion, although if suit had been brought on the instrument itself, it must be brought in the name of the payee, or obligee. Nor do we see any reason why the owner of a bond, or note, may not maintain trover for its conversion upon his possession, although the instrument be not payable to him. It is a mere chattel, and all that is necessary to maintain trover, is property in the plaintiff, and the right to possession. The testimony shows, that the plaintiff below was in possession of the note, using it as his own; this is prima fade evidence of ownership; no claim has been asserted to it by the payee, and the evidence shows that the defendant obtained possession through the act of an agent of the plaintiff, and which act he had not authority to do. This we must hold as sufficient evidence ,of ownership, in the absence of proof to show the contrary. 3. It was contended, that the demand, as proved, was insufficient to authorize a recovery, as the demand misdescribed the note. A demand is never necessary, but for the purpose of showing a conversion. The evidence in this case shows, that the defendant claimed the note, and has since this suit, collected the same by law of the payee. This is evidence of a conversion, and renders the demand unnecessary. 4. As the note was not negotiable by delivery, the defendant cannot resist the prior right of the plaintiff, by showing he paid value for it. Before the enactment of the státute before referred to, the defendant could have insisted on his purchase of the note foe value, as against the prior owner, who may have lost it, or whose possession may have been divested by some illegal act; but, by this statute, notes payable to any person, or persons, or bearer, can be negotiated by indorsement only, and cannot pass from hand to hand, so-as to enable the bearer to sue in his own name. The condi-' tion of the defendant, in reference to this note, is the same as if the words or hearer were stricken out, or if it had been under seal, and not indorsed. Consequently he cannot pro» [446] tect himself against the prior right of the plaintiff, by showing merely he had paid full value for the note. 5. The last question we propose to examine is, whether there is error in rejecting the deposition of Shaw. He was rejected as being interested, but it is very clear that his interest was balanced ; for if the plaintiff recovers of Donnell, the witness is responsible to him, and if the plaintiff fails he is responsible to him. But the defendant in error insists, that although the deposition of the witness was rejected, on the ground of interest, yet this is not such an error as will authorize a reversal of the judgment, because, admitting the truth of .every fact stated by the witness, it is not inconsistent with the plaintiff’s right of recovery, and that on a demurrer to the evidence, as well that introduced by the plaintiff, as the deposition of Shaw, the plaintiff would be entitled to recover. We have given this question some consideration, and we conclude, that the plaintiff would have been entitled to recover, had the deposition been permitted to be read, and full credit given to it. This proof is not inconsistent, with the title of the plaintiff as shown, and there is no legal conflict between the testimony of Jesse Thompson, and the deposition of Shaw that was rejected. The nearest approach to a conflict is in this, Jesse Thompson swears he received the note from the plaintiff, and sent it to Shaw for collection. Shaw’s deposition shows, that he received the note from the witness, with instructions to collect it, and apply the proceeds to the purposes of the firm of Shaw & Thompson, which was composed of the two individuals offered as witnesses. But it does not appear, that the witness had any authority to give this latter instruction, and the authority cannot be inferred from the declaration itself. The declarations of an agent cannot bind the principal, unless made by his authority, expressed or implied. See 1 Greenl. Ev. § 114; 10 Vesey, 123. The testimony of Thompson shows he had no authority to give the instruction to collect the money, and apply it to the use of the firm. We cannot see that any other result, according to law, [447] could take place, if the depositions of Shaw & Thompson were both submitted to the jury, or if the evidence was demurred to. The consequence is, the rejection of the deposition of Shaw, could not, according to the rules of law, work any injury to the plaintiff in error, and the judgment is therefore affirmed.