Real Estate Trust Co. v. Halliday

D.C. Circuit

Real Estate Trust Co. v. Halliday

48 App. D.C. 561, 1919 U.S. App. LEXIS 2354

CourtCourt of Appeals for the D.C. Circuit

DecidedMarch 31, 1919

DocketNo. 3186

StatusPublished

This text of 48 App. D.C. 561 (Real Estate Trust Co. v. Halliday) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Real Estate Trust Co. v. Halliday, 48 App. D.C. 561, 1919 U.S. App. LEXIS 2354 (D.C. Cir. 1919).

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Opinion

Mr. Chief Justice Smyth

delivered the opinion of the Court:

The plaintiff, Henrietta N. Halliday, sued the defendants, Eeal Estate Trust Company, a corporation, and Eldridge E. Jordan, on a promissory note for $6,760.57. There was an affidavit of merit and one of defense. The plaintiff moved under the 73d rule for judgment, on the ground that the affidavit of defense was insufficient. The court sustained the motion and entered judgment in favor of the plaintiff for the amount of the note sued upon.

The affidavit of defense does not deny the execution and delivery of the note, but pleads a set-off in1 the sum of $7,892.22, based upon the claim that the Trust Company, for whom Jordan was surety, had paid for certain property described in the bill of particulars attached to the plea of the defendants, and delivered the same to the plaintiff; that she is still in possession of it; that although she was often requested by the plaintiff to pay for it she refuses to do so, and that the reasonable value of the goods is $7,892.22.- It will be observed that there is no allegation that the goods were sold to the plaintiff,- were delivered to her at her request, converted to her own use or to the use of anybody else; that she makes any claim to them, that she refuses to deliver them to the defendants upon demand, or that defendants may not have them at any time they desire to do so. It is said that the plea of set-off alleges that the goods were delivered to plaintiff at her request, but the plea is not part of the affidavit of merit by reference or otherwise, and does not help it.

In view of these circumstances we cannot conceive of any theory on which appellee should be required to pay for the goods. Appellants cite many authorities to the effect that [565]*565where a person wrongfully converts the property of another to his own use, the owner may waive the tort and sue as upon quasi contract for the value of the goods. This is generally true, hut there is no allegation in the affidavit upon which a charge of conversion could be predicated. The authorities cited, therefore, are without point.

We think the judgment of the lower court is right and should be affirmed with costs. Affirmed.

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Mr. Chief Justice Smyth

delivered the opinion of the Court:

The plaintiff, Henrietta N. Halliday, sued the defendants, Eeal Estate Trust Company, a corporation, and Eldridge E. Jordan, on a promissory note for $6,760.57. There was an affidavit of merit and one of defense. The plaintiff moved under the 73d rule for judgment, on the ground that the affidavit of defense was insufficient. The court sustained the motion and entered judgment in favor of the plaintiff for the amount of the note sued upon.

The affidavit of defense does not deny the execution and delivery of the note, but pleads a set-off in1 the sum of $7,892.22, based upon the claim that the Trust Company, for whom Jordan was surety, had paid for certain property described in the bill of particulars attached to the plea of the defendants, and delivered the same to the plaintiff; that she is still in possession of it; that although she was often requested by the plaintiff to pay for it she refuses to do so, and that the reasonable value of the goods is $7,892.22.- It will be observed that there is no allegation that the goods were sold to the plaintiff,- were delivered to her at her request, converted to her own use or to the use of anybody else; that she makes any claim to them, that she refuses to deliver them to the defendants upon demand, or that defendants may not have them at any time they desire to do so. It is said that the plea of set-off alleges that the goods were delivered to plaintiff at her request, but the plea is not part of the affidavit of merit by reference or otherwise, and does not help it.

In view of these circumstances we cannot conceive of any theory on which appellee should be required to pay for the goods. Appellants cite many authorities to the effect that [565]*565where a person wrongfully converts the property of another to his own use, the owner may waive the tort and sue as upon quasi contract for the value of the goods. This is generally true, hut there is no allegation in the affidavit upon which a charge of conversion could be predicated. The authorities cited, therefore, are without point.

We think the judgment of the lower court is right and should be affirmed with costs. Affirmed.

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48 App. D.C. 561, 1919 U.S. App. LEXIS 2354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/real-estate-trust-co-v-halliday-cadc-1919.