Delaware Bank v. Smith

1 Edm. Sel. Cas. 351

• Court: New York Circuit Court, Delaware County
• Decided: September 15, 1846
• Status: Published

Opinion

The Circuit Judge charged the jury, that the defendant having received the package from the plaintiff, that was a sufficient consideration to support his promise to deliver it safely, and the plaintiff might have recovered on that promise, by simply proving that he had received the money, had made the promise, and had failed to perform it. But the plaintiff had not elected that form of action; on the contrary, one where more must be proved before he could recover, viz.: An actual conversion of the money by the defendant. To entitle the plaintiff to recover, the jury must be satisfied that the defenaant had the money in his possession at the time of the demand upon him, and then his refusal to deliver it would be evidence of a conversion by him, or they must be satisfied that he had actually converted it to his own use. And if they were satisfied that he had actually lost it, as he had represented, the plaintiff could not in that action recover.

And as to the damages, as it had been proved that the package contained only bills of the plaintiff’s bank, if they had actually been destroyed, the plaintiff had lost nothing, and was entitled only to nominal damages, but if defendant had used them, the plaintiff would be entitled to recover the full amount thereof with interest.

Verdict for plaintiff, for amount of bills and the interest.