Chase v. Whitmore

Belcher, C. C. — This is an action to recover the value of a promissory note,, alleged to have been wrongfully converted by the defendant. The case was tried, and judgment rendered in favor of the plaintiff, from which and from an order'denying a new trial the appeal is taken.

The note in question was dated November 3,1877, and was payable to the Farmers’ Savings Bank of Stanislaus County, thirty days after its date. It bore interest at the rate of one and one half per cent per month, compounding monthly, and provided for the payment of a reasonable attorney fee in case suit should be brought [546]thereon. It was assigned by the payee named to the ' Modesto Bank, and by the last-named bank was held and owned until November, 1879. At that time and until March, 1883, George W. Schell and B. B. Treat were partners, doing business as attorneys at law at Modesto. They did business for the plaintiff, and had money which she had left with them for investment.

On the fourteenth day of that month Schell bought the note of the Modesto Bank for the plaintiff, and paid for it with her money, she at the time having no knowledge of the transaction. The note had on its back a general indorsement made by the payee named in it. Schell received the note and placed it in an envelope, on which he wrote the plaintiff’s name, and then placed the note and envelope in a safe in his office. Shortly afterward he reported the transaction to the plaintiff, who was satisfied with it, and wished to let the note run as long as it could safely, because of the large rate of interest it bore. Neither Schell nor Treat had any authority to sell or pledge' the note. The note remained in the safe where it was placed until June, 1881, when, without the knowledge of plaintiff or Schell, Treat took it out and sold it to defendant. The sale was made in payment of an indebtedness of one hundred dollars from Treat to the defendant, and for .the balance of its face value in money. Afterward Treat told the plaintiff that he had collected the note and loaned the money out again on a mortgage. The plaintiff wished to see the mortgage, but he said he had a place in the bank where he kept such things, and he had "put it there.

The mortgage was not produced, and the plaintiff had no further knowledge in reference to the matter until March, 1883, and after Schell and Treat had dissolved partnership. Then she met Treat and they talked over her business. It was found that he had of her money, including this note, which he said he had collected, the sum of $485. He asked her if she would take him as