Iasigi v. Shea

20 N.E. 110, 148 Mass. 538, 1889 Mass. LEXIS 316

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1889
• Status: Published

Opinion

Morton, C. J.

By his default, the defendant waived his right to object that trover would not lie in this case. He thereby admitted that he had converted to his own use money belonging to the plaintiff, and the only question submitted to the court was the amount he had thus appropriated. It is too late for him to object that he appropriated the money under such circumstances that trover is not the proper remedy. The defendant contends that the declaration is so defective that no judgment can be rendered on it, and that any judgment on it would be set aside on a writ of error. This is not so. Trover will lie for the conversion of money under certain circumstances, as, for instance, for coins in a bag, or bills in a package. Dwight v. Brewster, 1 Pick. 50. Beatty v. Randall, 5 Allen, 441. Cushing v. Wells, Fargo & Co. 98 Mass. 550. The plaintiff might prove a case under his declaration which would entitle him to recover, and it is not fatally bad on a general demurrer. The defendant’s request was for a ruling, in substance, that trover would not lie. It was too late for him to take this ground, and the Superior Court rightly refused the request. The other exception to the instruction as to the writing signed by the defendant is not pressed, and we treat it as waived.

Exceptions overruled.