Opinion
Opinion filed May 4, 1928.
Arrest — Question for Consideration in Determining Whether Count in Complaint Justifies Arrest — Fraud by Appropriation of Money as Basis for Body Writ.
1. In action where complaint contained four counts, all in tort form, and writ issued as a capias, and at trial plaintiff was allowed, without exception, to strike out fourth count, basis of which was conversion of money, held, on defendants motion at close of hearing to dismiss action because stricken count was in contract and court without jurisdiction, that count referred to was not in contract; and whether it was good as a count of trover was wholly immaterial, the only question being whether it stated facts entitling plaintiff to remedy by way of body action.
2. Where plaintiff was defrauded by defendant's failure to deposit money as directed, and by conversion thereof by defendant to his own use, plaintiff had right to bring an action of tort in the nature of an action on the case for his damages.
3. While a broken promise is no fraud, appropriation of plaintiff's money by defendant to his own use, after having been instructed to deposit it, was a fraud upon plaintiff for which law gives a remedy by way of a body action.
ACTION OF TORT. Plea, general issue. Trial by court at the September Term, 1927, Windham County, Sherburne, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.
Frank E. Barber and E.W. Gibson, Jr., for the defendant.
Failure to allege that plaintiff has the right of immediate possession of property alleged to have been converted is a fatal defect to any count in trover. Campbell et al. v. Bryant, 98 Vt. 486; Nemie v. Todd, 89 Vt. 502; Thayer v. Kitchen, 200 Mass. 382, 86 N.E. 952; Savage v. Buffalo, 50 N.Y. App. Div. 136, 63 N.Y.S. 941; Stanley v. Sierra Nevada Silver Mining Co., 118 Fed. 931; Healy v. Flammia (Conn.) 118 Fed. 931.
Demand and refusal are necessary for maintenance of trover in all cases in which defendant was rightfully in possession, especially when party might have delivered the property if demand had been made. Lathrop v. Lawson, 96 Vt. 513; Crampton v. Valido Marble Co., 60 Vt. 291, 15 A. 153; Lemon v. Adams, 79 Conn. 81, 63 A. 861; Carleton v. Lovejoy, 54 Me. 445; Fairbanks v. Phelps, 22 Pick. (Mass.) 535; McDonnell v. Buffalo Loan, etc., Co., 193 N.Y. 92, 85 N.E. 801.
An allegation that defendant converted assets mentioned to his own use does not necessarily constitute a complaint in trover and conversion. Brayton v. Sherman, 1 Silv. Sup. 420 (N.Y.) 5 N.Y.S. 602; Parker v. Roberts et al., 99 Vt. 219, 222.
A count may be tort in form, yet be contract in substance; and, if so, it is a count in contract, Caldbeck v. Simanton, 82 Vt. 69; Roy v. Phelps, 83 Vt. 174; Foster v. Caldwell's Estate, 18 Vt. 176.
In trover, an averment of value, and an averment describing the converted property, are indispensable. McLennon v. Livingston, 108 Ga. 342, 33 S.E. 974; Thayer v. Kitchen, 200 Mass. 382, 86 N.E. 952; Dakin v. Elmore, 127 N.Y. App. Div. 457; Ryan v. Hurley, 119 Ind. 115, 21 N.E. 463.
Trover will lie only for specific money, when its identification is possible, and there is an obligation to deliver the specific money in question. Hazelton v. Locke, 104 Me. 164, 71 A. 661; 15 Ann. Cas. 1011, and note; 26 R.C.L., p. 1101.
Arthur V.D. Piper and Herbert G. Barber for the plaintiff.
The fourth count, which is in form in tort, sets forth in brief and simple language how and for what purpose defendant came into possession of plaintiff's property, his wilful failure to comply with the terms of his possession, and his fraudulent and intentional conversion of property in question to his own use, and constitutes a good and sufficient count in tort both under the Practice Act, and judged by the requirements of common law, Reed v. Hendee, 100 Vt. 351, 137 A. 329; Will's Gould on Pleadings, Chapter XIV, pp. 51, 211; Lamb v. Clark, 30 Vt. 347.
The proceeds of a mortgage were a subject of conversion for which tort would lie. Lamb v. Clark, supra.
Defendant was plaintiff's bailee of the mortgage and note for a certain purpose, and converted them to his own use, which made him liable in an action of tort; and it was immaterial to question of liability whether he converted the whole or only a part thereof. McCrillis v. Allen, 57 Vt. 505.
Present: WATSON, C.J., POWERS, SLACK, MOULTON, and CHASE, JJ.
The original complaint contained four counts, all in tort form, the writ issued as a capias, and the defendant was arrested thereon. The case came on for hearing below, and the plaintiff was allowed without exception to strike out the fourth count of the complaint. Thereupon, a trial was had by the court, and after the evidence was all in, the defendant moved to dismiss the action on the ground that the fourth count was in contract and the court was without jurisdiction under the holding in Roy v. Phelps, 83 Vt. 174, 177, 75 A. 13. This motion was overruled, and the defendant excepted. The court then found the facts, and rendered judgment thereon, to which the defendant excepted. If the count referred to was, in fact, in contract, the defendant's contention would be sound; for the process being void, it was unamendable, and striking out the count did not result in giving the court jurisdiction of it. Ibid. But the count referred to was not in contract. It may or may not be good as a count in trover. That question is wholly immaterial. The question is, does it state facts entitling the plaintiff to a remedy by way of a body action. In Reed v. Hendee, 100 Vt. 351, 353, 137 A. 329, a very similar claim was made. It was there said that trover would not lie on the facts alleged. But we held that the action was not trover; that it was a Practice Act complaint, and that the only question was whether on the facts stated the plaintiff could have a tort-wise recovery.
The case made by this fourth count does not differ in essence from the case above cited. There, an executor had settled his final account, and had been ordered by the probate court to pay over to the plaintiff a specified sum of money. Instead of doing so, the defendant converted the money to his own use. Here, the defendant did not deposit the money as directed by the plaintiff, but converted it to his use. One so defrauded may bring an action of tort in the nature of an action on the case for his damages. To be sure, a broken promise is no fraud. But the subsequent appropriation of the plaintiff's money, which is the basis of this action, was a fraud upon the plaintiff, for which the law gives a remedy by way of a body action. See Snyder v. Parmalee, 80 Vt. 496, 68 A. 649; Miller v. Belville, 98 Vt. 243, 126 A. 590.
Judgment affirmed.