Brown v. Dunham

77 Mass. 42

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1858
• Status: Published

Opinion

Thomas, J.

The notes, the amount of which the plaintiff seeks to recover from the administrator of his guardian, it is agreed as matter of fact, were given for the money of the ward. They were made payable to the defendant’s intestate in his own name. They were retained by the guardian, not negotiated nor pledged, nor in any way used for his own business. They are clearly identified and traced. The fact that they were made payable to the guardian in his own name and negotiable, without any evidence of appropriation, or of any attempt to appropriate them to his own use, is not sufficient evidence of his conversion of the money and mingling it with his own. Such breach of duty is not to be presumed, and the mere form of the notes fails to establish it. Judgment for the plaintiff.