Lawatsch v. Cooney

Headnote

1. Conversion — What constitutes.

Where the parties agree upon the amount of plaintiff’s interest in a draft, and deliver it to a third parLy to collect and divide the proceeds, and after-wards the defendant wrongfully obtains possession of it with plaintiff’s indorsement thereon, claiming to be the sole owner and denying that plaint

iff has any interest therein, his action is such a wrongful appropriation of the draft, in violation of the contract of the parties, as to constitute a conversion.

2. Same — Bill of Exchange.

An action in the nature of traver can be maintained for the conversion, of a bill of exchange.

3. Former adjudication — Subject-matter.

The pendency of an equitable action for the specific performance of an agreement as to the division of the proceeds of a draft is no bar to an action for a wrongful conversion of such draft by the defendant subsequent, to the contract.

Appeal from a judgment entered on a verdict in favor of platntilf, and from an order denying a motion for new trial, made on the minutes.

The complaint, verified January 9, 1889, was as follows:

“(1) That he was and is the owner of certain premises situate on the southerly side of Union avenue, in the city of Kingston, (Sí. Y., which he improved, and on which he erected a mill and machinery; andón or about the 18th day of February, 1888, Henry W. Palen filed in the Ulster county clerk’s office a notice of lien thereon for lumber and material furnished therefore, to the amount ■of $181.06, and duly perfected the same.

‘“(2) That afterwards the Hew York Bowery Fire Insurance Company insured the buildings, grain, etc., on said premises, to the amount of $1,000.

“(3) That afterwards said buildings, grain, etc., were destroyed by fire, and the said insurance company, to pay said loss, issued its draft for $1,000, payable to the order of this plaintiff, John J. Cooney, and Margaret Cooney, his wife; that the plaintiff’s property and interest in said draft, and the money called for by the same, amounted to about the sum of $344, and the plaintiff refused to indorsed said draft to the defendant until he was secured for his property and interest therein; that thereupon the defendant, agreed that William D. Brinnier should be the trustee and medium between them, and should hold and have the custody of said draft, until after the defendant had paid, satisfied, and discharged said lien of Henry W. Palen, and had delivered to the said Brinnier or this plaintiff the proper voucher or certificate showing that the same had been done, and until after two hundred dollars had been deposited in the hands of said Brinnier by the defendant for the use and benefit of this plaintiff, to be applied on two certain notes made by the plaintiff and indorsed by the defendant, and until after a satisfaction piece of the mortgage held by the defendant's wife on said premises had been delivered to said Brinnier; and thereby, on or about January 2, 1889, induced this plaintiff to indorse said draft, and said Brinnier took the said draft into his custody, pursuant to said understanding and agreement, and the next morning the defendant, under pretense of wanting to see the amount of said draft, snatched it from the custody and possession of said Brinnier, and took and negotiated and sold and collected the same, and converted the rights, interests, and property of the

plaintiff therein, and in the moneys called for by the same, -to his •own use; to the plaintiff’s damage $844, for which amount, with interest and costs, the plaintiff demands judgment.”

Defendant pleaded, among other things, that another action was pending “between the same parties as this action, and for the same cause as that set forth in the complaint.’’ In support of such defense ho offered both complaints in evidence. The complaint in the action pleaded .in abatement, also verified on January 9,1889, was identical with the complaint in this action, down to and including the words “to his own use,” in the last line but one thereof, as above set forth, and then it continued as follows:

“Without satisfying said lien, or producing any vouchers or certificate showing that the same had been done, and without placing in the hands of said Brinnier the said $200, and without satisfying the said mortgage of his wife which had been paid, and without doing any of the acts and things which he had stipulated .and agreed to do. Wherefore, the plaintiff demands judgment that the defendant specifically perform his said agreement in regard to the satisfaction of the mortgage of his said wife, and in regard to said lien, and that he pay, satisfy, and discharge the same, and produce to said Brinnier, or to his plaintiff, certified copies of said satisfactions and discharges, and receipts of 'the application of said moneys as per agreement, and for such further or •other relief as shall be just and equitable, with costs.”