Majority
p. 347Canfield against Monger and Adams.
Headnote
Trover wiU SSL payaMe t® wuchfas'bem to collect, and mount received payment of a note which he pfa’Sitw1inst the^“immvebeen Lme^actL! wanifbe mide" B¡¡k.subjMt of ®
IN ERROR, on certiorari to a justice’s court.
Monger & Adams, the plaintiffs below, declared against Canfield, in trover, for a note drawn by Benjamin WilHams, payable to the plaintiffs, on which there was due about 18 dollars ; also a count for money had and received, and also ■for goods sold. From the evidence, it appeared, that the note ° ' 1 1 was put into the hands of John E. Canfield, to collect and apply towards the payment of a note which John E. Canfield held against the plaintiffs; and on which note the defendant below, as endorsee, had, the day before, commenced a suit against the plaintiffs. The defendant below acknowledged that lie had had the note in question, which had been paid to him, The plaintiffs below demanded the note, which he refused to deliver, and also required to have credit given on their note, which he also refused ; and it appeared that no endorsement was made pn the plaintiffs? note of .any money received of Williams. What was further done in that suit, does not appear. In this suit, the justice gave judgment for the plaintiffs.
Whether the money counts could be joined with a count in trover, is not a question before us ; no objection having been made in the court below, it is, therefore, to he taken as admitted by consent. The proof, however, did not
p. 348
support the count in traver; there was no conversion : the note was delivered to John E. Canfield to collect, and apply the money towards the payment of a note which he held against the plaintiffs below ; and, from the confession of the defendant, it appeared that he had received (he money, and that the note was discharged, and, probably, was given up to Williams, the drawer; at any rate, there was no evidence that it was? in the defendant’s possession, when demanded, and: if paid'off by Williams, it ought to have been delivered up to him, There was, therefore, no conversion, as the note had been: disposed of according to the directions to John E. Canfield; nor was the count for money had and received supported. If the defendant below acted as the agent of John JS, Canfield, he was accountable to him, and did not receive the money for the use of the .plaintiffs. But admitting the defendant to b.e accountable to the plaintiffs for the money, it was matter of defence upon the suit on the plaintiffs’ note, which, it appears, was commenced before the present action. It ought to have been set off in that action, if the defendant was at all responsible for the money to the plaintiffs below. The judgment must, accordingly, be. reversed.
Judgment reversed, •