Voltz v. Blackmar

Headnote

Appeal from a judgment in favor of the plaintiff, entered at Dutchess county Circuit, on the decision of the court without a jury.

The action was brought for the conversion of a certificate of deposit for $4,000. The plaintiff had been clerk with power of attorney to draw checks for the defendant. The relation being about to terminate, plaintiff drew a check on defendant’s bank account for $4,000, and thereon obtained the certificate in question) $4,000 being the amount due him, according to plaintiff’s calculation, from defendant. The defendant had plaintiff arrested, and the certificate was taken from him by the police and delivered to defendant; the defendant having previously received from plaintiff the defendant’s note for $3,000 canceled, the $3,000 being included in the $4,000 certificate, which note defendant retained.

The judge trying the cause found that the plaintiff, honestly believing the defendant indebted to him in the sum. of $4,000, by mistake and not otherwise, drew the check and applied the same to such indebtedness, and notified defendant at once thereof, and defendant authorized him to draw a check for the $3,000 note, but for no more until a settlement was had. The defendant was really indebted to plaintiff $156 less than the $4,000. The court at General Term was of opinion that a cause of action for conversion was made out, and that defendant having given a cause of action to plaintiff by a forcible seizure and conversion of the property, no lien for the $156 interest in the certificate, accrued to defendant from his tortious possession ; and that as to damages, the amount due upon the certificate at the time of conversion was the measure.^[1]