Hawkins v. Stark

19 Johns. 305

• Court: New York Supreme Court
• Decided: January 15, 1822
• Status: Published

Opinion

Platt, J.

delivered the opinion of the Court. When the plaintiff received the doubloons, in part payment of the note, they were undoubtedly his money. But after he returned them to Bishop, from whom he received them, and Bishop bad agreed to take them back, the property of the plaintiff in those gold pieces was transferred to B., and the payment on the note was virtually rescinded. By sending the doubloons back, the plaintiff elected not to consider them as his money. By accepting, them when returned, B. made them his own, and virtually agreed to stand indebted to the plaintiff, as though no doubloons had been passed between them. B. had, then, a right to dispose of the gold as he pleased. It was his own money. And the plaintiff had a right of action against him for the whole amount of the note. There appears to be no privity, nor contract, express or implied, between the defendant and the plaintiff. B. re-delivered the doubloons to the defendant from whom he received them. They then became the property of the defendant, who was accountable for their value, to B., not to the plaintiff. The action has been misconceived The verdict must, therefore, be set aside, and a new trial granted, with costs to abide the event of the suit.

New trial granted.