secured by it. The case is much the same as if the plaintiff had originally taken out the contract in the name of the defendant, by his consent, (which is not an uncommon case in these matters, I apprehend, in order to secure the good will and credit of a former contractor,) but with the understanding, that he, in whose name the contract stood at the department, should have no interest or concern in it, except perhaps to receive a bonus for his countenance and good will. Under this state of facts, we may suppose one of the quarterly checks to come into the hands of the nominal contractor, and he having some just, or simulated, claim against the real contractor, puts the check to his own use, and gravely insists either that he will not be sued at all, or, at all events, not in the form of an action of trover. We could only consider him as holding the check merely in the capacity of a trustee for the person whom he had permitted to use his name. He would be in effect a mere depositary. The money, when obtained, would be that of the real contractor, and he could maintain trover for it. The present case is precisely the same in principle. The plaintiff may maintain trover for the money even, so long as he can identify it. Jackson, et al. v. Anderson, 4 Taunt. 24; which was trover for 1900 (spanish-milled) dollars. So, too, where the trustee has wrongfully converted the trust money into other property, the owner of the money shall have trover for the property purchased with it, as long as he can trace it. Taylor v. Plumer, 3 M. & S. 561, which was where a bankrupt had wrongfully converted money, given him to buy exchequer bills, into American stocks. The plaintiff was allowed to maintain trover against the assignees for the avails of the stocks purchased thus wrongfully with his money. In pronouncing judgment in the case, Lord Ellenborough, well says, An abuse of trust can confer no rights on the party abusing it, nor on those who claim in 'privity with him.-The doctrine, that the property in the thing ceases when it is tortiously converted into another form, is mischievous in itself and supported by no authority ' of law.' In every view, then, which we can take of this case, we think it clearly maintainable, either for the check, or the money. We are the more reconciled, not to say gratified, at this result, from the consideration that it does meet the ADDISON, January, 1842. Tilden v. Brown. January, 1842. Tilden Ο. Brown. ADDISON, obvious equity of the case. There can be no doubt the parties, at the time of entering into the contract, did expect the same consequences to follow from the contract, which we have now sought out and applied. There can be little doubt that the suggestion, at the time, of a contrary result, would have either broken off the negotiation, or have induced a resort to other forms of effecting the desired object. This is fairly inferable from the very great pains which were taken to exclude the defendant from retaining any possible control of the quarterly checks. It is the basis and the only legitimate object of all rules of construction, to make contracts speak the sense of the parties. If this result is secured, courts need not feel alarmed by any foreboding, or prognostication, even, of the fearful calamity which may be expected to befal either the principles or the forms of the law. I know it is difficult always to steer evenly between the extremes of disregarding the particular equity of a case, on the one hand, or the settled rules and formulas of the law, on the other. Neither should ever be lost sight of. Both are important; and, in a clear case, no doubt the particular equity should yield to established precedent and principle. But in a wise, judicious, and cautious administration of the law, it is believed these conflicts will be found much fewer than is sometimes apprehended. It is the great boast of our law that its forms may, without violence, be so moulded, as to meet the absolute justice of all cases. Here is a controversy about something more, I apprehend, than the mere form of the action. For if trover cannot be maintained, it is because the money realized was not the money of the plaintiff, and if not the money of the plaintiff, then whose was it? Surely the defendant's. He of course cannot then be liable for this same money, in general indebitatus assumpsit, for money had and received. If he is liable at all, it must be upon his contract. This provides for no such contingency, for the best of all reasons, that the parties did not so understand the matter. The contract provides no more indemnity against the defendant taking these checks, than against his taking the horses, or carriages. The result is, if we deny this remedy, we do either deny all redress, or turn the plaintiff over to a remedy which the parties never intended, and, by consquence, did not provide for. Hence, if this case were even doubt ful, in regard to the form of redress, which it is not, I should be more inclined to take the view which conforms to the right and justice of the particular case, and the intentions and expectations of the parties, in regard to the contract, than one which violates both these, in pursuit of some distant anology, to some, perhaps, more questionable precedent, than the very case under consideration would make. When cases are decided with a leading reference to their justice, it generally turns out, when they come to be analyzed fully, that they are in conformity with the just principles of the law, and fully reducible to its most approved formulas. And not a few of those cases where the acknowledged equity of the cause has been sacrificed to some supposed regard to precedent, or to principle, even, when they come to be subjected to the severer scrutiny of time, have been found to have violated both precedent and principle. Hence I always feel safer, in a point which to my mind seems doubtful, to regard more the justice of the case than any nice and uncertain analogy, trusting to other minds to see the reason for what I feel to be just. But, in the present case, I could not esteem it even doubtful whether the judgment now declared is in conformity with the established forms and precedents, were it not that two members of this court, who have twice heard the argument at the bar, either hesitate, or dissent from this judgment, which is but the opinion of three of the members of the court. Judgment reversed and new trial. BENNETT, J., Dissenting. To maintain this action, the plaintiff must have been vested with a property in the draft, connected, at least, with a right of possession. Actual possession alone is not enough, in this case, against the defendant, inasmuch as he does not stand as a stranger. If the property in the draft was in fact vested in the plaintiff, it is no objection to this action that it had not been so negotiated to him as to transfer the right of action upon the paper itself; but the great objection to the action, in my mind, is the want of a vested interest, or property, in this specific draft, in the plaintiff. And it is to be remarked that the action is for the conversion of the draft itself, and not for any specific moneys which the defendant has received by means of it. ADDISON, 1842. Tilden v. Brown. ADDISON, January, 1842. Tilden v. Brown. One of the requisites of a contract of sale, is, that the thing sold must be in esse, at the time of the making of the contract; that is, it must have an actual or potential existence, and be capable of delivery, otherwise it is but an executory contract and conveys no legal title to the thing, which was the subject matter of the contract. The right of property does not pass. It is true, as between the parties, the right of property and of possession may pass to the vendee without an actual delivery; but this presupposes that the subject matter of the sale was definite, ascertained, and capable of immediate delivery. In Robinson v. McDonnell, 5 M. & S. 228, there was a transfer by deed of the freight, earnings, and profits of a ship. In an action of trover for oil, which was the produce of whales taken on the voyage, it was held there could be no recovery. So the sale of wool, which shall thereafter grow upon the vendor's sheep, passes no property. The subject matter of the sale was not in esse; the vendor had not, at the time of the contract, either actually or potentially, the thing sold, but only, as it is said, in possibility. Wood & Foster's case, 1 Leon. 42. Grantham v. Hawley, Hob. 132. In Mucklow v. Mangles, 1 Taunton, 318, trover was brought for a barge, and although the party who had ordered it built, had paid money on account, equal to the price, and his name had been painted on it by the builder, yet it was held that the vendee had acquired no property in it for want of a delivery. It will be seen that the bargain did not provide for the advances to be made, and they do not seem to have been regulated by the progress of the work, and though no particular barge had been designated in the contract, and could not well be, it being afterwards to be built, yet, when built, the vendor had designated it, and, in effect, set it apart for the vendee. Laidler v. Burlinson, 2 M. & W. 602, is similar in principle. In the case of Woods v. Russell, 5 B. & Ald. 942, which at first might be thought to conflict with other cases, yet, by the terms of the contract, the ship was to be built under the superintendence of the agent of the purchaser, and given portions of the price were to be paid, and were paid, according to the progress of the work, and it was considered, in effect, as a purchase of the specific articles of which the ship was built. Besides, the ship builder had sign ed the certificate, to enable the purchaser to have the ship registered in his own name. In Clark v. Spence, 4 Ad. & E. 467, the same principle was recognized. In Ward v. Shaw, 7 Wend. 404, it is held that when any thing remains to be done before the sale can be considered as complete, whether to be done by the vendee or vendor, the right of property does not pass to the vendee, as between the parties themselves, though the property may have been placed in the possession of the vendee. Indeed these principles are too well settled to admit of debate. The only question I consider there can be, relates to their applicability to the case before us. Brown was the contractor with the government to convey the mail, and, on the first of December, 1837, assigned over his interest in the contract to the plaintiff, but the post-office department had not recognized the assignment, or in any way discharged Brown from his liability to that department. All the responsibility still rested upon him and his bail, and to them could the government alone look for the fulfilment of Brown's contract, and, upon such fulfilment, Brown became the creditor of the government, and it made no difference that his assignee had in fact carried the mail, so long as the government had not recognized the assignment. So far as respects the government, Tilden was but the agent of Brown, and it was of no importance that, as between Tilden and Brown, the latter ceased to have any interest in the contract after the assignment. The government being debtor to Brown, and the draft given him being in settlement of such indebtedness, it became, as I think, when enclosed to him by the post-office department at Washington, his property. The case finds that the plaintiff, before closing the contract and taking the assignment, required, as security to him, that the drafts and all communications addressed to the defendant, from the post-office department, thereafter, should be retained by the post-master at Middlebury, and delivered to the plaintiff, at that place, or else forwarded to him at Rochester, and that the defendant should receive nothing except the draft for the quarter ending December 31st, 1837. The plaintiff's action is brought for the draft given for the quarter ending March 31st, 1838. At the time of the contract between the parties, no such draft was in being; no indebtedness existed on ADDISON, January, 1842. Tilden v. Brown. |