Rice v. Jones & Bro.

BRICKELL, C. J. The facts of this case, as shown by the bill of exceptions, are, that on the 8th day of February, 1880, Charles H. Bobinson, to obtain advances to enable him to make a crop, executed a mortgage to Matthews & Tobias upon his entire crop to be grown that year on a plantation known as the “Merriwether place,” to secure the payment of his promissory note for two hundred dollars, which is embodied in the mortgage. On the 3d day of March, 1880, the mortgage was recorded in the proper office; and on the 17th of June, 1880, by writing thereon endorsed, Matthews & Tobias transferred it to the appellants, Bice & Wilson. In October, 1880, Bobinson, not having riotice of the assignment, in part payment of the mortgage debt, delivered to Matthews •& Tobias two bales of the cotton grown by him, and Matthews shipped it in his own name to Marks & Fitzpatrick, warehousemen in the city of Montgomery, for sale. The cotton having been sold, on the 22d day of October, 1880, Matthews purchased of the appel-lees, Jones & Brother, merchants in the city of Montgomery, a bill of goods, giving them in payment an order on S. 0. Marks, of the firm of Marks & Fitzpatrick, for one hundred and thirty-four dollars and seventy-three cents, expressing that it was proceeds of three bales of cotton. This order on presentation was paid to the appellees; ninety-eight dollars and twenty cents being proceeds of the sale of two bales of cotton, which Bobin-' son had delivered to Matthews & Tobias. The appellees had no notice that the cotton did not belong to Matthews, nor of the manner in which he obtained it, nor of the assignment to the appellants of the. mortgage of Bobinson. The present action is brought by the appellants to recover of the appellees the proceeds of the sale of the two bales of cotton, paid to them by Marks & Fitzpatrick. The Circuit Court refused to instruct the jury, on request of the appellants, in substance and effect, that upon this state of facts they were entitled to recover; but, on the request .of the appellees, instructed them, that if they believed the evidence, they must find for the appellees. These rulings form the matter.of the assignment.of errors. Conceding to the appellants the proposition upon which they [554] insist, that the legal title to the cotton enured to them upon its delivery to Matthews & Tobias, and that for its subsequent conversion they could maintain trover against them, or waiving the tort, assimvpsit for money had and received, recovering the price for which they sold the cotton, does not meet the question now involved. Upon the strength of the legal title, if it enured to them as claimed, there could be a recovery of the cotton, or, from a tortfeasor, of the proceeds of its sale, if he sold for money or its equivalent. The legal title can not, however, enable the appellants to pursue money, the proceeds of the sale of the cotton, which was in the usual course of business passed into the hands of an innocent holder, upon a valuable consideration.- — Burnett v. Gustafs, 54 Iowa, 86; Jones on Chat. Mort. § 464. Money, or bank-notes current as'money, pass from hand to hand by delivery, possession of itself being suffi-cent evidence of title, upon the faith of which all persons dealing fairly may safely receive them. In the leading case of Miller v. Race, 1 Burr. 452 (1 Smith Lead. Cases (7 Am. Ed.), 808), the principle was settled by Lord Mansfield. A bank-note had been stolen from the mail, and was taken for value by the plaintiff in the usual course of business. Upon its presentment to the bank for payment, it was taken and retained by the defendant, as clerk in the bank, having notice of the robbery, and the bank having been indemnified by the real owner to stop the payment of the note. The plaintiff was held entitled to recover, because money or bank-notes pass upon, the faith of possession, and that it is necessary for the purposes of commerce, that their currency should be established and secured. Any other principle would embarrass and render insecure the daily transaction of business. If the defendants had known of the claim of plaintiffs to the cotton, and that the money they were receiving was the proceeds of its sale, a different question would be presented. But not having such knowledge, tliey had the right to presume the money paid to them was the money of Matthews, the drawer of. the check, and having received it in good faith, upon a valuable consideration, they are entitled to retain it. Affirmed.