Canfield v. Monger

12 Johns. 347

Opinion

Per Curiam,

Whether the money counts could be joined with a count in trover, is not a question before us ; no objection having been made in the court below, it is, therefore, to he taken as admitted by consent. The proof, however, did not support the count in traver; there was no conversion : the note was delivered to John E. Canfield to collect, and apply the money towards the payment of a note which he held against the plaintiffs below ; and, from the confession of the defendant, it appeared that he had received (he money, and that the note was discharged, and, probably, was given up to Williams, the drawer; at any rate, there was no evidence that it was? in the defendant’s possession, when demanded, and: if paid'off by Williams, it ought to have been delivered up to him, There was, therefore, no conversion, as the note had been: disposed of according to the directions to John E. Canfield; nor was the count for money had and received supported. If the defendant below acted as the agent of John JS, Canfield, he was accountable to him, and did not receive the money for the use of the .plaintiffs. But admitting the defendant to b.e accountable to the plaintiffs for the money, it was matter of defence upon the suit on the plaintiffs’ note, which, it appears, was commenced before the present action. It ought to have been set off in that action, if the defendant was at all responsible for the money to the plaintiffs below. The judgment must, accordingly, be. reversed.

Judgment reversed, •