St. John v. O'Connel

COLLIER, C. J. — The arguments at the bar have presented these points: First — As to the sufficiency of the declaration. Second — The propriety of the refusal by the court, to permit the plaintiff to ask the defendant’s witness, what answer St. John <fc Leavens made to the demand by witness, of the notes in dispute. Third — Was the transcripts from the District court, evidence to show an excuse for the non-delivery of the notes by St. John & Leavens, or to prove the insolvency of the makers, by the marshal’s return of nulla bona ? Fourth — Were O’Connel & Brenan entitled to a return of the notes of F. & C. McLemore, and Curry, Jackson &. Co., upon the re-payment by them to St. John &, Leavens, of the advances upon the paper, these notes were pledged to secure? Fifth — Did the fact of having put the notes in suit in the names of J. D. Beers & Co., amount to a conversion —if so, what should have been the measure of the defendant’s damages ? Sixth — Could St. John & Leavens retain the notes to satisfy any other demand, they might have against O’Connel & Brenan ? First- — We do not discover any available objection to the declaration, in charging St. John & Leavens, as partners. To authorise a recovery, it is only necessary to show that the conversion complained of, was a transaction in the course of the partnership dealings, or in the conduct of the affairs of the concern. Suppose property be placed in the hands of warehouse-men or factors (who are co-partners) for a particular purpose, and instead -of — 474 — giving it its appointed destination, they wrongfully detain it, or illegally assume an ownership,' — are not the joint effects justly chargeable with the reparation of the injury sustained by the owner ? And how are these effects to be reached, where there are other partnership creditors, unless a recovery shall be had against them, as joint traders or dealers 1 The declaration is certainly unobjectionable in point of law — the right to recover on it, must depend upon the proof. Second — The precise question embraced by the second point, was made in Dent & Cade vs. Chiles’ adm’r—(5 Stew. & Por. 383.) In that case, the plaintiffs in error, who were defendants in the court below, were sued in trover, for the alleged conversion of slaves. On the trial, the plaintiff introduced a witness, who proved a demand by him, of the slaves of the defendants, previous to the commencement of the suit; whereupon the defendants offered to prove by the same witness, the reply which they made to the demand. But this was refused by the court, on the ground, that to permit the defendants declarations at the time of the demand, would be to enable them to make evidence for themselves. The plaintiff further proved, that at the time the demand was made, the defendants omitted to deliver the property sued for — whereupon, the defendants proposed to prove by the same witness, the reasons stated by them for their failure to comply with the demand — hut this was also denied, for the same reason that caused their first proposition to he refused. This’court affirmed the judgment of the inferior court, — considering that though the evidence sought to be elicited might be legal in itself, — 475 — yet the question was not properly framed. It is stated, as a general rule, that “ a party is not authorised to give his own declarations in evidence, in his own favor,”— though it is not denied that this rule has its exceptions-If, upon a demand of propoity by an agent, the party insists upon the production of the agents authority, and declines a delivery, • because of its non-production, here there would he no evidence of a conversion, and the excuse for a compliance with the demand, though it come from the defendant himself, would he admissible to show that no wrong was imputable to him. But if instead of offering an excuse for yielding to the demand, the defendant had asserted a title, spoken of its origin, &c. his response would not he evidence. A mere demand of property, which is a duty imposed by the law upon a party, to entitle himself to an action of trover, against one whose possession is rightful, could not, with propriety, draw forth such an answer. If the law were otherwise, most defendants would he careful at the time of a demand, instead, of offering an apology for their conduct, to furnish evidence of their title, — and plaintiffs be often prejudiced by the performance of what is, in many cases, an indispensable pre-requisite to the prosecution of their rights. In the case cited, the court say, “ If the reply was such as made it an exception to this rule, and amounted to a reasonable qualification of the refusal, the party wishing the advantage of such an exception, should have shown it. By informing the court what the nature and purport of that reply was, if proper testimony, the court would have been hound to allow it to go to the — 476 — jury. It is the court’s province to guard, the jury from the reception of illegal testimony, lest it should have an influence, notwithstanding it may be afterwards withdrawn from them: and the practice is to take the opinion of the court on the admissibility of testimony, any ways doubtful, before offering it to the jury. If improperly rejected by the court, the party injured has his remedy in the revising court.” In the case at bar,' the court was not informed of the facts expected or desired ■ to be proved by the witness, and the question framed accordingly; but a mere general question proposed, to which the answer might have disclosed either legal or illegal testimony, depending upon the character of the reply to the demand of the notes. The case cited is direct to the point, both in its facts as well as principles, and as it settles a question of practice, even were we dissatisfied with it, we should yield sufficient homage to the maxim of stare decisis, as to accord to it its full influence. Third — The records of the suits, judgments and executions, by J. D. Beers & Co. vs. F. & C. McLemore, and J. D. Beers & Co. vs. Curry, Jackson & Co. were properly rejected. It is an established general rule, that records of the proceedings in courts of judicature, are only admissible as evidence between parties and privies. In Chapman vs. Chapman, (1 Munf. R. 398,) it was determined, that the record of one suit cannot be used as evidence in another, on the ground, that the defendant and one of the plaintiffs in the latter suit, were parties to the former, and that the same point was in controversy in both —another plaintiff, and the person under whom both — 477 — plaintiffs jointly claimed, not having been parties to the former — (See further as to this point, Bond vs. Ward, 1 Nott & McC. R. 201; Carmack vs. Commonwealth, 5 Binney’s R. 184; Duval et al. vs. Green, 4 Har. & J. 270 ; Harwood vs. Rawling’s heirs, Ibid, 126: So in Burgess vs. Lane, et al. 3 Greenl. R. 165;) — it was adjudged that a verdict and judgment arc not admissible evidence to show a co-partnership, even where that fact was expressly put in issue by the pleadings, where the action in which such evidence is offered is not between both the parties to the former suit. But it is needless'to multiply authority to this point, for it rests upon a cardinal principle of natural justice, which maintains that no man shall be bound by an act or admission of another, to which he was a stranger. A different rule would often be promotive of the severest injustice, by making a party responsible for a result, against which he could have made no defence; from which he could not appeal, and which may have been superinduced by the negligence of another, or else by fraud or collusion. This reasoning will apply with all force to the return by the marshal of nulla bona, to the executions, (even conceding such a return to furnish any evidence of insolvency.) It is competent for the plaintiff in execution to gainsay, by motion, the truth of that return, and upon an issue being made up, to submit to a jury, the ascertainment of its falsity; and if untrue, to fix a personal liability upon the officer returning the execution — A stranger is not entitled to such a proceeding, and though the return be un-authorised in fact, he cannot question it. By analogy to the principle which excludes judgments inter alios, the executions and their returns are. nfiko inadmissible. — 478 — Fourth—3t. John & Leavens received of O’Connel & Brenan the notes in controversy, to indemnify them against the const queaces which might result from their endorsements of the paper of the latter; and though there may have been no express stipulation to return the notes, yet the law tacitly annexed an undertaking to the contract of the parties, that so soon as O’Connel & -Bre-nan relieved SL John 6f Leavens from their liability, or refunded to them all advances,with interest,&c. — that then the latter would re-dcliver to the former these notes, unless they had sooner collected them; and that if a collection should be made, that St. John & Leavens would account for the proceeds. The stipulation in the contract, by which it is agreed, that if the paper of O’Connel & Brenan should not bo paid at maturity “ by the accepters and drawers, or by Messrs. O’Connel & Brenan,” that the collateral security given at the time of the contract, was to be considered as the property of St. John &■ Leavens, from the date of the contract, “ according to the tenor of the transfers,” and be used by them as such for their benefit, — does not extend tolhfi notes in controversy. These notes were received afterwards, under this provision in the contract: “As an additional security for these endorsements, Messrs. O’Connel £/ Brenan are to transfer to us notes and acceptances of country names of unquestionable responsibility, to the amount of ten thousand dollars, payable at any time within the period of February next ensuing.” Now, there is certainly not the slightest pretence for saying that these notes were to become the properly of St. John 4° Leavens, upon the failure of O’Connel & Brenan to meet their paper at maturity. — 479 — Such an idea is even excluded by the express terms of the contract, which tay the employment of these words, “the above mentioned col id oval . iriiy” dearly limits the first stipulation we have recited, to the property designated in the contract. There was no forfeiture of the notes eifected by operation of law, upon the failure of G’Conriel & Brenan to discharge their paper as it fell duo; and St. John & Leavens, if they were under such an impression, certainly did not think of claiming a forfeiture, else why did.they render their account to O’Connei fy Brenan, and receive the amount of it from their agent'? The purposes .for which the notes were placed in the hands of Sí. John & Leavens, having been fully answered by the reimbursement to them of their advances, O’Counel & Brenan had a right to demand them. Fifth — There are a variety of acts, which, in point of fact, will amount to a conversion of a personal chattel, though the first taking was lawful. An illegal assumption of ownership — an illegal using or misusing — or a wrongful detention, are all satisfactory indicia of a conversion — (1 chit. Pl. 140, 141.) And a temporary conversion will suffice to render a defendant liable; for a conversion which has once taken place cannot be cured; therefore, if one man take another’s horse and ride him, and afterwards return him, yet trover will He, and the re-delivery will go only in mitigation of damages— (Countess of Rutland’s case, 1 Roll’s Ab. 5, (e.) pl: So in Wyatt et al. vs. Blades, (3 Camp. R. 395,) Lord Ellenbo-rough decided that a sheriff who had talced the goods of a bankrupt in execution, after a secret act of bankrupt — 480 — cy, and removed them, though lie had not sold them, was liable to an action for their conversion without a previous demand. And it has been held, that if a man, against the owner’s consent, make use of a thing found or delivered to him, it is a conversion—(Cro. Eliz. 219 ; 3 B. & A. 687.) In Baldwin vs. Cole, (6 Mod. 212,) Lord Holt determined that the assuming to oneself the property in, and right of disposing of, another man’s goods, is in itself a conversion; and this judgment of Lord Holt was approved by the King’s Bench, in McCombie vs. Davies, (6 East, 537.) In what other light can the act of St. John & Leavens be viewed, in placing the notes in dispute beyond their control, than a conversion; — -beyond their control, we say, for whatever may have been their intention in suing these notes, or the opinion of their witness of the extent of their powers over the suits, it is clear, that in point of law, the interest in the judgments must be regarded as in J. D. Beers & Co. A Court of Equity might possibly divest this interest, but a Court of Law would consider it paramount. St. John & Leavens, it may be remarked, do not appear, from the proof, to have been partners of J. D. Beers & Co., but that house was merely interested in the business of St. John & Leavens. In this view, it is apparent, that St. John & Leavens have transcended the authority'conferred by their contract — have exercised an unauthorised control over the notes in dispute, by placing it beyond their power to return them, when the purposes for which they were pledged we're satisfied; and upon the authority we have cited, are chargable with their conversion. — 481 — The records from the District court being out of the, way, there was no proof of the inability of F. & C. McLemore, or Curry, Jackson & Co. to pay their notes — but the evidence went "rather to show the solvency of both those firms. Under these circumstances, the measure of the damages was the amount expressed upon the face of the notes, with interest from their maturity up to the time of their conoerniou, and then interest on the aggregate from that time to the verdict — (See Mercer vs. Jones, 3 Campbell’s R. 476; Wilson vs. Conine, 2 Johns. R. 280; Shotwell vs. Wendover, 1 Johns. R. 65; Cortelyou vs. Lansing, 2 Caine’s cases, 200; Fisher vs. Prince, 3 Burr. 1363; Hunt’s adm’r vs. Fuller, 2 Bla. Rep. 902.)— Whether a different rule would apply, or how it should be modified, in cases where the maker of a bill or note which has been converted, is insolvent, is a question involving some important considerations, and we consequently leave it to be decided, when it shall arise in judgment. Sixth — The remaining point embraces the question as. to the right of St. John & Leavens to retain the notes, placed in their hands, after the purpose for which they had received them was answered, on the ground that O’Connel & Brenan were indebted to them on another account. The law, on this point, is so clearly stated by Mr. Justice Story, that we Will content ourselves with a quotation from that learned author, and a reference to-the cases which sustain him — (Story’s Bailment, 205.)— He says: “If there are any subsequent accessorial engagements, which either tacitly or expressly, arc by the parties intended to be attached to the piedge, the pledgee. — 482 — lias a title and right of possession eo-extensive with the new engagements. But the mere existence of a former debt due to the pledgee, does not authorise him to detain the pledge for that debt, when it has been put into his hands for another debt or contract, unless there is some just presumption that such was the intention of the parties. The rule, in such cases, strictly applies, that the contract is to govern the rights of the parties. Modus elconventio vincunt legem.”—(See also, 2 Vern. 691; Jarvis vs. Rogers, 15 Mass. R. 389, 397, 414; Green vs. Farmer, 4 Burr. R. 2214; 6 T. R. 258; 7 East’s R. 224; 2 Kent’s Com. 454; Prec. Ch. 419; Story’s Eq. 300; 2 Ves. 372.) In the case at bar, there is no pretence for inferring the assent of O’Connel & Brenan, to the retention of the notes by St. John & Leavens, to secure any other liability but those embraced by the written contract of the parties. In regard to the expenditures made by St. John &• Leavens, in the payment of costs, &c. in endeavoring to collect the notes in controversy, inasmuch as these must have been made,in aid of the suits or judgments in favor of J. D. Beers & Co., O’Connel & Brenan are not chargeable with their reimbursement; because the conversion was previously complete. We think there is no error in the record, and the judgment is therefore affirmed.