Goss v. Emerson, 23 N.H. 38 (1851) - Opinion

The note given by the plaintiff to the defendant, March 29, 1848, was negotiable. It was an absolute undertaking to pay §208.78, to the plaintiff or order, in six months with interest. A contract,, by the same writing and on the same consideration, to pay a sum of money and also to deliver goods, is not a negotiable note; because, the contract being entire, and not negotiable as to the goods, it cannot be negotiable as to the money. The note in the case merely recites the consideration; the undertaking is to pay absolutely in money, and in money alone.

The four notes, for which this suit was brought, were delivered tojthe plaintiff, in pledge, to secure payment of the plaintiff’s note: By the written agreement of the defendant, the plaintiff was to have these notes back when he paid his note of §203.78. The plaintiff was to pay his note; that is to say, he was to pay §203.78, and interest, to the defendant or his indorsee, according to the tenor of the note. The plaintiff, by the obvious construction of the contract, was to make payment to the holder of the note, before he could entitle himself to a retium of the securities, pledged for its payment. The defendant did not agree to restore the pledge, when the plaintiff should pay him §208.78 and interest, but when he should pay the note; and payment of the money to the defendant, after the note was indorsed, would not pay the note. The note could only be paid to the holder. The tender, therefore, to be available should have been made to the holder; but the tender was made in this case to the defendant, after he had indorsed and transferred the note, and when he had no right to the money due on it.

It is, therefore, unnecessary to consider whether the tender stated in this case would have been sufficient, if it had been made to the proper party.

Foreign gold coins are not however a legal tender; nor are they current at any exact known and fixed rate, like current bank notes, and some foreign silver coins; and it may well be doubted whether the creditor to whom foreign gold is tendered in-payment, is bound to make his objection at the time, as in the case of current bank notes. Such foreign gold coin is of uncertain and fluctuating value, and in that respect is more like a commodity than like cash. If offered without any statement of the sum to which it was supposed to amount, the creditor would not have the means of knowing the exact sum which the debtor meant to admit that he owed. When a tender is pleaded, the plaintiff takes judgment for the amount tendered. The defendant could not plead that he tendered certain specified gold coins, and aver that at the time of the tender they were of a certain value. The plaintiff could take'no judgment upon such a plea. He must plead that he tendered a sum certain and make profert of the money in court; and if, in the mean time, the foreign coin had fallen in market value, the same coin would not keep his tender good. But it is not necessary to pursue this point further, as in this case there was no tender made to the party who was entitled to receive payment.

The general property in the four notes pledged, remained in the plaintiff; but the defendant took them in pawn for the payment of his debt, and thus gave Mm an interest in them, which, whether his debt were negotiable or not, he could lawfully transfer to a third person. He might assign all Ms interest in the pledge; or he might assign it conditionally, to secure payment of Ms own debt; or he might deliver it to a bailee, without consideration, to hold as a deposit for him. The transfer of the notes in any one of these ways would be a legal disposition of them, authorized by the nature of the defendant’s interest as pawnee.

In Jarvis v. Rogers, 15 Mass. Rep., 408, Jackson, J., delivering the opirnon of the court, says: “ The pawnee may deliver the goods to a stranger without consideration; or he may sell or assign all his interest absolutely; or he may assign it conditionally by way of pawn; without in either case destroying the acquired lien, or giving the owner the right to reclaim them on any better terms than he could have done before such delivery or assignment.’’ Sir John Ratcliffe v. Davis, Yelverton, 178; Demainbry v. Metcalfe, 2 Vernon, 690; Bush v. Lyon, 9 Cowen, 56; Bullard v. Billings, 2 Vermont, 309, and Story-on Bailments, 219, go to establish the same general doctrine.

"Where the pledge has been merely bailed to a third person, and the whole interest remains in the original pawnee, payment or tender may be made to him, and after tender to the pawnee, the bailee on demand will be liable in trover. Ratcliffe v. Davis, Yelverton, 178.

But where the interest is assigned with the thing pledged, tender should be made to the assignee. Demainbry v. Metcalfe, 2 Vernon, 690.

Murray v. Burling, cited for the plaintiff from 10 Johnson, 172, does not appear to be in point. In that case the note was entrusted to the defendant to raise money and pay the plaintiff’s debt; instead of that, the defendant transferred the note in payment of his own debt, in direct violation of his trust and contrary to his express undertaking.

The legal nature of the defendant’s interest in the four notes, gave him the right to transfer them to Kingsbury with the negotiable debt, which they were pledged to secure. Of course he cannot be charged with a wrongful conversion, by assigning the notes to Kingsbury.

If the act of Kingsbury in delivering up the notes to the maker was a conversion, it was not the act of the defendant. He had legally parted with his possession and all his interest. Kings-bury was substituted in his place as the lawful holder of the securities, and the defendant cannot be charged with the wrongful act of another, over which he had no control. A mortgagee might as well be held liable for the destruction of the mortgaged property, after he had parted with all his interest by a valid assignment.

The demand in this case was unnecessary, if there had been a previous conversion, and unavailing, if there had not. If the defendant, at the time of a demand, has in his possession goods of the plaintiff, which he is able and bound to deliver, his refusal, on demand, to deliver, would shew that he then unlawfully detained the goods from the plaintiff; and this unlawful detention would of itself be such a control over them as would be inconsistent with the plaintiff’s rights and would amount to a conversion. So if he were bound to have the goods ready for delivery on demand, and at the time of the demand-they were out of his posession and power, so that he could not deliver them, this would be evidence tending to shew that he had previously disposed of them by an illegal conversion to his own use. But if the goods, at the time of the demand, are not in the power of the defendant, he cannot then exercise any control over them that will constitute a conversion. If it appear that he had lost the possession without such tortious interference as would amount to a conversion, the demand and refusal will not make him liable in this form of action. In this case, at the time of the demand, the four notes were not in the control of the defendant, and it was out of his power to deliver them, and he could not be guilty of a conversion at that time. The facts are found, which shew how he parted with the notes, and what has since been done with them.- If on those facts he had been previously guilty of conversion, the demand was unnecessary; and if he had not, the. demand could not make him so, although he might be liable in another form of action.

If a carrier have lost goods, by accident or negligence, a demand and refusal will not make him liable in trover, though he may be liable in case of assumpsit. Anon., Salkeld, 655.

And so of a wharfinger. Ross v. Johnson, 5 Burr., 2827.

If the defendant has bound himself personally, by his contract, to see that the notes were returned when the debt for which they were pledged was paid, the plaintiff must seek his remedy by an action on the contract, and not in trover.

The offer of other notes, instead of those which were pledged, of the same tenor, but made at another time, and on a different consideration, could not defeat any right of action that the plaintiff had. If the defendant had no right to transfer the notes to Kingsbury, or if Kingsbury’s act had been a conversion, for which the defendant was liable, the subsequent tender of other securities or even the same, would not in law, discharge the plaintiff’s right of action. Trover is allowed to be maintained for a promissory note, or other written security, on the ground that it is a specific thing, in which the plaintiff has a property, as in any other chattel. It is the written instrument, and not the money due on it; the security and not the debt, that is the subject of the action. As in any other case of a conversion, the tender and return of the thing converted would not be shewn to defeat the action, but only in mitigation of damages.

The plaintiff might well decline to receive new securities of the same tenor and made by the same party, but bearing a false date, made in fact at a different time, on a different consideration, or perhaps without any consideration at all, and which might be open to various defences that would not have been set up against the original notes.

The case shews no conversion of the notes by the defendant; and the verdict must be set aside, and judgment entered for the defendant.