Woodworth v. Kissam

15 Johns. 186

• Court: New York Supreme Court
• Decided: May 15, 1818
• Status: Published

Opinion

Per Curiam.

This is a motion to set aside a nonsuit, ordered upon- the trial of this cause. This action was trover for a gold watch. Whether there was sufficient evidence of a conversion should have been submitted to the jury. The evidence was circumstantial only; but it was pretty strong to show that the defendant had, by undue means, got possession of the watch in. question. That the watch was the property of the plaintiff a short time before it was found in the defendant’s possession, is not denied. What passed between the parties when the defendant received the watch, was in private ; but in the subsequent conversation between them, the plaintiff charged the defendant with having violated his engagement in relation to it, and that he had deceived him, and got the possession unfairly. The defendant did not deny his statement, but offered to endorse the value of the wratch upon the notes which he held against the plaintiff, and did, afterwards, make the endorsements. If there was, however, any fraud or deception practised on the plaintiff, no change or transfer of property took place. No man can avail himself of his own misconduct, as the foundation of a claim set up by him. The principles which governed decision of the Court, in Murray v. Burling, (10 Johns. Rep. 172.) will apply here, if the circumstances shown upon the trial were sufficient to make out the misconduct of the defendant; and whether they were so or not, should have been submitted to the jury. The nonsuit must, accordingly, be set aside, and a new trial awarded.

Motion granted.