Roberts v. Berdell — 15 Abb. Pr. 177

Majority

p. 177

ROBERTS against BERDELL.

Court of Appeals ;

February, 1873.

Headnote

Payment.—Cause op Action.—Limitations.—Conversion.

For the purpose of satisfying a pledgee’s claim, and sustaining as action for a conversion of the pledge, a payment of the claim, mad,o . on account of the debtor, although without his knowledge, is equivalent to a payment by himself.

Where the pledgor, after learning of such a payment, applied repeatedly. for a re-delivery of the pledge, and was put off by the pledgee, and finally disavowed the alleged payment, and made a formal demand of the pledge, coupled with an offer to pay what

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was due, but without a tender, and the pledgee then for the first time absolutely refused to deliver the pledge;—Held, that an action for conversion could be sustained on proof that the payment was actually previously made.

The cause of action was not barred until six years after the formal demand and refusal, although the payment and previous requests for a return of the pledge took place more than six years before the action was brought.

Demand and refusal are evidence of a conversion at the time of the refusal.

Sidney D. Roberts sued Robert H. Berdell in the supreme court, to recover damages for the alleged conversion by defendant of four mortgage bonds of the Long Dock Company, which belonged to one Seymour, and were pledged by him with defendant as security for a loan, and which defendant after repayment of the loan refused to return to Seymour. Plaintiff claimed to recover as Seymour’s assignee of the cause of action.'

In 1856, defendant was acting president of the Long Dock Company. Seymour was a contractor with the company for building a tunnel. Seymour’s contract provided that he should be paid partly in the bonds of the company, by the acting president, upon Seymour’s requisitions upon the company. It being desired that the bonds of the company should not be thrown upon the market pending certain negotiations for the sale of a large amount of the bonds, the defendant made advances to Seymour on a pledge of several of the bonds that he received as the work progressed. There was some conflict in the testimony as to whether these payments were intended by defendant as loans made by himself personally or as advances by the company ; but'the weight of evidence was clearly that defendant made the loans individually. Defendant, however, reported to the company in his monthly accounts the amount of these loans, as advances made to Seymour ;

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and they were charged to Seymour against credits given to him for his work. These loans were thus in effect reimbursed, more than six years before the commencement of the action. Seymour testified on the trial that in March, 1861, at an interview with defendant, it was agreed to let the accounts stand as representing the transaction, and that defendant promised to hand him the bonds in a few days. Defendant requested Seymour to call at his store to receive them. Witness went to the store in a few days and saw the bonds. Defendant said he must see the agents of the company before he could give up the bonds. Witness called at the store probably twenty times to get the bonds, and have the other matters settled if possible. He called again the last time in June, 1861, told defendant that he wanted his bonds; it was not a company matter and he would refund the loan with interest if defendant would give witness the bonds. Defendant said it was a private loan ; that he understood witness had commenced proceedings against the company, and therefore he would not settle anything. This was the first time he ever refused to give witness the bonds.

The supreme court sustained a judgment in favor of plaintiff, awarded by the referee, and held that the statute of limitations commenced running when this last demand was made, and defendant refused to deliver the bonds, i. e., in June, 1861. Defendant appealed.

Samuel J. Glassey, for defendant, appellant.

Besides insisting that the finding of payment was against the weight of evidence and unsupported by the evidence, insisted that the action was barred by the statute of limitations; that the several loans were independent transactions; that the alleged demand in June, 1861, would not sustain the action, if it was accompanied by an admission that the debt was still unpaid,

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and by a promise to pay, when no tender was made. That by the finding of payment it appeared that defendant had wrongfully retained the bonds for a year before this last demand, and they had been repeatedly called for, so that the cause of action accrued more than six years before the suit was brought. Plaintiff ’ s subsequent demand did not extend the time (Kelsey v. Griswold, 6 Barb., 436 ; Bucklin v. Ford, 5 Id., 399 ; Roberts v. Sykes, 30 Id., 173). Defendant’s promise to return the bonds, after demand, and failure to do so, was a conversion, more than six years before suit brought (Durell v. Mozier, 8 Johns., 445 ; Farrington v. Paine, 15 Id., 430). So too the demand made a few days after the promise to return them, was sufficient, and the failure to get them was a refusal (Watkins v. Woolley, 1 Gow., 69 ; Golightly v. Ryn, Loft., 88 ; Davies v. Nicholas, 7 Carr. & P., 339) ; and the request to see the other agents of the company before returning the bonds was equivalent to a refusal (Davies v. Vernan, 6 Ad. & El. N. S., 443); hence the conversion was more than six years before suit brought.

Thomas Henry Edsall, for plaintiff, respondent.

As to the statute of limitations, cited 1 Chitty's Pl., 14 Am, ed., 157, and cases cited; Howland v. Edmond, 24 N. Y., 308 ; Pars. on Cont., 91 ; Bain v. Walker, 12 Barb., 298 ; Kelsey v. Griswold, 6 Id., 437 ; Little v. Blunt, 9 Pick., 487 ; and distinguished Roberts v. Sykes, as not applicable, but only requiring payment to be made within six years of the pledge.

The referee has found that the four bands were pledged to the defendant as security for these several loans by him to Seymour, and that “each, of said loans was repaid to said defendant

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within thirty days after date by said Seymour.” And it is claimed upon the appeal from the judgment that this last finding was entirely without evidence. The precise time of the payment is not an essential part of the finding. If paid at all, it is not disputed that they were paid before the demand of the bonds by Seymour, and if there was evidence that the loans were paid in behalf and on account of the borrower, it was equiva-' lent to a payment by him in person, and the finding would be justified.

The only material fact found was the repayment of the loans to the defendant, before the demand was made of a re-delivery of the bonds. The evidence did tend to prove a payment as found. Seymour was at the time of the loans constructing the Bergen tunnel under a contract with the Long Dock Company, and the defendant, as the acting president of the company, made advances upon the work, on the requisition of Seymour, and at the end of each month was repaid by the company, and the advances were charged by it to Seymour as payments on his contract. These loans were reported to the company by the defendant as advances, and credited to him and charged to Seymour, and this was assented to by the latter at an interview between himself and the defendant, and in the words of Mr. Seymour, “Mr. Berdell promised to return the bonds and to let the account stand as it was, as he, Berdell, had been paid his loans.”

Mr. Seymour was corroborated by his own bookkeeper, who was present. He was contradicted by the defendant as to the fact that these loans were by him and not by the Long Dock Company, but on cross-examination he does say, that it was his intention at the time to make a personal loan, but changed his mind, although he did not notify Seymour of such change. He does, however, admit in substance, that it was arranged, as testified to by Seymour, that the moneys

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should remain charged to Seymour in account with the Long Dock Company, and does not claim that he is out of p 'icket. On the contrary, the plain inference from his own statement is that he has been reimbursed the loans by the Long Dock Company.

It is not objected here that the report of the referee, that the loans were made by the defendant and the bonds received by him in pledge for the debt to him, is not warranted by the evidence. Neither is it objected that the evidence does not show that the defendant has been reimbursed by the Long Dock Company. It follows,—all the parties, Berdell, the lender, and who, as he says, himself was acting as president of the Long Dock Company, having “the entire charge of the affairs of the company, in relation to Mr. Seymour,” Seymour, the borrower, and Mr. Brunner, the auditor of the company, having consented that the loans should be regarded as payments upon the Seymour contract, and the same being charged to Mr. S., upon his contract, and Berdell repaid as in the case of other advances made by him for the company,—that the loans were paid by Seymour as found by the referee. They were paid from money due to, him and by his debtor.

There is no finding as to any reconsideration of the. arrangement, and a withdrawal of these items from the accounts between Seymour and the Long Dock Company.

The loans being paid, Mr. Seymour was entitled to a return of the bonds, as the defendant had no longer any claim or lien upon them. From that time he was a naked bailee of the bonds, holding them for Seymour.

This disposes of the next objection taken by the appellant, that the motion for a nonsuit should have been granted at the close of the plaintiff’s evidence. No reasons were assigned for the motion upon the trial or in this court. It was properly denied.

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The only other ground, urged in this court for a reversal of the judgment, is that the action was barred by the statute of limitations.

After the payment of the loans in the manner and by the arrangement stated, the plaintiff’s assignor on several occasions asked the defendant for his bonds, but was put off by evasive answers, and the claim was not insisted upon until the last of June, 1861, after he had quit the work on the tunnel. He then made a formal demand of the defendant for the bonds, and he refused to deliver them, and Seymour says this was the first time he ever refused to give him the bonds.

The action was brought in less than six years after this demand. The referee finds no other demand or refusal, or any conversion at any other time, or any facts from which a conversion at any other time can be inferred.

The cause of action arose upon a conversion of the bonds by the defendant, and the demand and refusal is only evidence of a conversion, and is evidence of a conversion, at the time of the refusal. It follows that the statute of limitations had not run against the action. If there had been a prior demand and refusal, or a conversion prior to that time, which would have given the plaintiff’s assignor a right of action, the fact should- have been proved and found by the referee.

A mere omission of the defendant to return the bonds after the payment of his debt was not a conversion, and no conversion can be presumed prior to the demand and refusal in June, 1861 (Phillpot v. Kelly, 3 Ad. & El., 106 ; Brown v. Cook, 9 Johns., 361 ).

The judgment must be affirmed.