Summary
In Phelps v. Bostwick (22 Barb. 314), it is expressly decided that " a bailee or depositary is not liable to an action until demand and refusal; therefore, wheremoney has been left with another, in naked deposit, for the benefit of the owner, the latter cannot maintain an action to recover it until a demand has been made upon the depositary to return it, and he has refused so to do."
Summary of this case from Schroeder v. JahnsOpinion
September Term, 1860
George T. Spencer, for the appellant.
George B. Bradley, for the respondent.
I am unable to see upon what ground the defendant can rightfully claim to retain the plaintiff's money, the contingency upon which he was to retain it, by the agreement of the parties, never having happened. The transaction is a plain and simple one, and is enshrouded in no mystery. It is clear that the plaintiff contemplated the procurement of an assignment of the contract. Upon the happening of that event, he would become the debtor of the defendant for the amount due on the contract. It is equally clear that he did not intend to, and did not, in fact, become such debtor, unless he procured the assignment of the contract. He had no inducement, so far as the facts developed in this case show, to assume the payment of Davis's debt; and nothing has appeared to warrant the inference that he did assume it. The plaintiff, therefore, at the time he left this money with the defendant, was not his debtor in any manner whatever, and at no period since has he, in any sense, stood in that relation to him. This clearly appears from the acts and statements of the defendant himself. He stated, on one occasion, to the father of the plaintiff, who was his debtor upon a similar contract, that he had some money of the plaintiff, and that he, the plaintiff, wanted it, and the defendant wished to know if it could not be applied on the contract of the witness. The witness replied that he had nothing to do with the money, and could not make the turn. The conversation was in reference to this $200, and it is apparent that it must have been after the plaintiff failed to get the assignment of the contract, and after he had called on the defendant to return him the money placed in his hands with reference to that contingency. We fail to see any agreement on the part of the plaintiff to procure such assignment, or any consideration which would support such an agreement, if made. The construction of the receipt, as given by the judge at the Circuit, is manifestly the correct one: that, by the terms of the receipt, the defendant does not assign any interest he has in the land or the contract, and the plaintiff does not agree to procure the contract; and he properly left it to the jury to find whether there was any further arrangement between the parties other than that which appears in the receipt. The jury, by their verdict, found there was not. We see no error in the charge of the circuit judge, or in his refusals to charge as requested; and the judgment in favor of the plaintiff should therefore be affirmed, with costs.
All the judges concurring,
Judgment affirmed.