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Decisions of the Superior Courts of New South Wales, 1788-1899

Thurlow v. Condle [1834] NSWSupC 28

promissory note, assignment - conversion - chose in action, assignment of - trover, elements of

Supreme Court of New South Wales

Forbes C.J., 4 March 1834

Source: Sydney Herald, 6 March 1834[ 1]

Thurlow v. Condle. - This was an action brought for the conversion of a promissory note.  The facts of the case are these:- the name of Kuhne, to discount a note for £25, drawn in favour of J. A. Duvauchelles, for which he was to receive a bonus of £5 not having sufficient cash at the time, he gave Kuhne £5, and promised to procure the other £15; Thurlow gave the note to Condle, who promised to get it discounted, but after much delay, and repeated applications for either the money or the note, the defendant refused to give it up.  Mr. Rodd, examined, stated that at the request of Thurlow, on the 29th of January last, he made an application for the payment, when defendant offered three other notes, drawn by different individuals, one for £5, and two for £10 each, which the plaintiff refused to take; Mr. Condle offered to give up the £20, or the note, which he (Mr. R.) refused to receive unless he was paid his fees, which he (Mr. R.) conceived he was by late decisions entitled to; on the following morning Mr. Duvauchelle paid the fees, and told him (Mr. R.) that the note in question should be handed over immediately to Mr. Thurlow; this however was not done, on ascertaining which he (Mr. R.) immediately issued the necessary process.  Mr. Foster, for the defendant, argued that the plaintiff ought to be non-suited, first, on the ground that no refusal could be proved; and secondly, that there was no evidence to substantiate the allegation that Mr. Thurlow had any property in the bill.  Why had not Kuhne been put into the box, to prove under what conditions he delivered the bill?  The only proof that Thurlow had any property in the bill was from the admission of Condle that he had received the bill for the purpose of discounting it.  Mr. Wentworth contended that the admission of the defendant went to decide a complete ownership on the part of his client; that when defendant offered to pay the money he ought to have produced it, and tendered it in a proper manner, which he neglected to do.  Much argument followed, on both sides, after which the Chief Justice stated the facts of the case to the Assessors, who returned a verdict for the plaintiff, damages £20.

 

Forbes C.J., Dowling and Burton JJ, 8 March 1834

Source: Australian, 10 March 1834[ 2]

 

Thurlow v. Condell - This was an action of trover tried during the present term before the Chief Justice, and two Assessors, to recover possession of a promissory note, for £25, when a verdict was found for plaintiff for £20.  The Chief Justice having read over the notes of evidence, Mr. Foster moved for a new trial, on the grounds, 1st, that there was no proof of any property in the note.  On the first point, Mr. Foster contended that on the application being made to defendant to deliver up the note or pay the amount, he replied that he would pay him £10 that night, and £10 the next day, and on a notice being sent to him by Mr. Rodd, he treated it as a joke, but on speaking to Mr. R. upon the circumstance, and offering to deliver up the note, or pay the money, Mr. R. refused to interfere, unless he was paid his fee.  The writ was issued out the next day.  From these facts it was clear that no conversion was either intended, or in reality took place.  There was no refusal to deliver up the note, on the contrary the defendant had expressed a willingness to hand it over, consequently there was no conversion express or implied.  As to the second point, he did not rely so strongly upon that, considering the first conclusive.

Mr. Wentworth, in answer, observed on the second point urged by Mr. Foster, the mere possession of a negotiable instrument was quite sufficient to presume the right of property in the holder.  With respect to the conversion, there was evidence to go to the Assessors of a demand and refusal, or what was tantamount to a refusal, which was sufficient to support the conclusion at which they had arrived, that there was an actual conversion.  This was evident from considering the case he had cited at the trial of a factor to whom goods had delivered for sale.  The evidence went to shew that the defendant said he had discounted the note, and he offered to pay over the proceeds, which however he did not do, and so neglecting, and at the same time not giving up the note, he was liable in an action of trover.

Mr. Foster, in reply, argued strongly that a distinct refusal must be proved, mere frivolous excuses would not be sufficient, where goods or a note were handed over under contract.  If the circumstances in this case were held to amount to a conversion, there would be no end of actions of trover in this Court; contrivances would be made to send goods to parties, and because they did not immediately deliver them back when applied for an action of trover would be forthwith commenced to recover the full value for unsaleable articles. -  After some time spent in deliberation, the Court took time to consider.

 

Forbes C.J., Dowling and Burton JJ, 15 March 1834

Source: Australian, 17 March 1834[3 ]

 

Saturday - Thurlow v. Condell. -  Mr. Dowling delivered the opinion of the Court. -  This was an action of trover tried before his honour Judge Dowling, and two assessors on the 5th instant, and a verdict given for the plaintiff.  On the 8th instant, a new trial was moved for by the defendant, on the following grounds, viz: - first, that the plaintiff had no property in the note in question.  Secondly, that there was no proof of conversion - and thirdly, that the Learned Judge misdirected the assessors.

His Honour went through the arguments adduced on the hearing of the motion, and adjudged that the verdict ought not to be disturbed, inasmuch as the plaintiff made a demand of defendant for the note in question, and he having omitted to deliver the same, it amounted in law to a refusal, and the possession of the note on the other hand was evidence of property in the plaintiff - Motion refused.

 

Forbes C.J., Dowling and Burton JJ, 15 March 1834

Source: Dowling, Proceedings of the Supreme Court, vol. 93, State Records of New South Wales, 2/3276[ 4]

 

[p. 41] Trover for a promissory note for 20£ drawn by one Queu in favour of Duvauchelle & by the latter endorsed to the Plf. - Plea N.G.  At the trial before Forbes C.J. this term it appeared in evidence that the note as between Queu & Duvauchelle was a matter of accommodation, to raise money by discount.  Queu applied to the Plf to discount the rate.  He had not money enough but advanced 5£ on account of it for which Cuhen gave a receipt with a promise to repay the 5£ if the Plf could not discount or get it discounted.  The Plf was to have a bonus of 5£ on the transaction.  The plf then handed the note to the Deft to discount.  A day or two elapsed, when the Plf. called upon the Deft. & demanded the money or the note.  The deft. promised to pay him that day a certain proportion of the amount, & the remainder next  day.  The deft failed in his promise, & the next [p. 42] day, which was the 29th June the Plf's attorney, at sea in the evening sent a written document to the Deft by his clerk, requiring him to deliver up the note or pay the amount of it in cash & in default thereof threaten an action.  The letter was taken unsealed to the Defts shop in George Street, & he not being at home it was left there.  Shortly after, the Deft saw the Plf's attorney in the street & said to him ``I wish you had put a wafer in the letter you sent me."  He seemed to treat it as a joke, but the attorney told him, he would find it was no joke.  Upon which the deft said ``I think Thurlow has acted hastily in this business.  I offered him 10£ in the morning & promised to him have the remaining 10£ next day which he refused."  The deft. then said he had the note, & he was willing  to give it up or pay the amount.  The attorney sd. he wd. not interfere unless he was paid his fee.  He spoke of it as a note drawn by Quhu.  He did not offer [p. 43] note or tender the amount of it.  Next day the 30th June he was served with process.  The note had never been delivered up nor had the plf sent the amount.  Two points were made at the trial on behalf of the Deft.  1st that there was no proof of any property in the note entitling the Plf to possession; & second that there was no evidence of an unqualified refusal to deliver the note up, so as to constitute a conversion..  The Judge ruled that as the Plf had advanced 5£ to the maker on account of the note, he had such a title to it, as would support trover, & seemed, he ruled that to an absolute refusal in terms to deliver the note, was not necessary to constitute a conversion & directed the jury that if they thought upon the evidence, that the Deft had held the note an unreasonable time after a written demand left at his house, that would in law be equivalent to a refusal, & they would [p. 44] be warranted in finding him guilty of a conversion.  The Jury found a verdict for the Plf.  Damages 20£.

Foster now moved for a new trial on both grounds taken at the trial, but he relied most strongly upon the necessity of an absolute refusal, as evidence of a conversion, where there was no proof of an actual conversion.  He cited Severin v. Keppell.[5 ]

Wentworth contra, contended that the shuffling conduct, & delay of the deft, was sufficient to warrant the Jury in finding him guilty of a conversion.  A mere demand of the note in writing, served at the defts home, this neglect promptly to comply with the demand was evidence of a conversion to support the verdict.  He cited relied Walkins v. Worlly 1 Gow. 69.

c. a. v.[ 6]

[p. 45] Dowling J.

The other Judges concurred in my view of the case, & I delivered the judgment.  I think the verdict ought not to be disturbed.  As to the first point, it was wholly unnecessary for the Plf to prove to title on this case.  He clearly had had the possession of the note, whether rightfully or wrongfully is immaterial.  This is a negociable [sic] instrument, & bare possession is prima facie title against a mere wrong doer.  But he had in fact a special property in it, for he had advanced to the maker of it, 5£ as of his own proper money.  However, both in trespass & trover, a bare possession is sufficient to sustain an action against a wrong doer.  Blackham's case 7 Salk. 290.  See Saunders, N.P. 878.  Here the deft admitted that he had had the note of the plf.  As to the second point, I think there was sufficient evidence of a refusal to deliver, from which the Jury might be warranted in presuming a conversion.  It is laid down in Mr. Espinasse's practical treaties on the Settling of Evidence for trials at Nisi prius[7 ] that in trover, it is not necessary for the Plf to shew [p. 46] a refusal in terms of the deft. to deliver the goods.  It is sufficient to prove a demand and an omission by the deft to deliver them before action brought.[8 ]  Here the defendant admitted that at the time of the demand he had the possession of the note.  What was the reason he assigned for not delivery it?  Not that the plf had no title to it, but that he had previously offered to pay him 10£ on one day, & promised to let him have the other 10£ the next day, which the plf refused.  Is not that evidence of a refusal to deliver it up.  He then went on to say that he was willing deliver up the note, or pay the amount.  He omitted to do so, which itself amounted to a refusal to give up that to which he had no title.  He still retained it in his possession, & assumed a dominion over it.  In the case of Baldwin [p. 47] v. Cole 6 Mod. Lord Holt. laid that the very denial of goods to him who has a right to demand them is an actual conversion, & not merely evidence of it as has been holden; for what is a conversion but the assuming to oneself the property & right of disposing of another's goods? & he that takes upon himself to detain another man's goods from him without cause takes upon himself the right of disposing of them.  The same case is reiterated & dwelt upon by Lrd Ellenborough in Mr. Combie v. Davies.[ 9]  If this doctrine be applicable to the case of ordinary chattels, how much more forcibly does it apply to a promissory note, which is a negociable [sic] instrument, the property in which papers by delivery.  This note was delivered to the deft to be discounted.  It had been in his possession two days.  The very delay in returning it, or paying over the value, [p. 48] after the demand & without reasonable cause was itself in [?] a conversion & upon a demand & omission promptly to deliver it, was sufficient without a positive & absolute refusal, to render him liable to an action.  It was his duty either to return discounting the note at once, or to pay over the cash with one hand whilst he read the note with the other.  I think the omission to deliver it after demand was evidence of a refusal, to warrant the jury in finding a conversion.[10 ]

 

Notes

[1 ] See also Sydney Gazette, 8 March 1834; Australian, 7 March 1834.

[2 ] See also Sydney Herald, 10 March 1834.

[3 ] See also Sydney Herald, 17 March 1834.

[4 ] See also Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277, p. 51.

[5 ] Marginal note in manuscript:  4 Esp 157.

[6 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

[7 ] Marginal note in manuscript:  1819.

[8 ] Marginal note in manuscript:  p. 298.

[9 ]  Marginal note in manuscript:  6 Each 540.

[10 ] This is followed in the notebook by a further 5 lines beginning:

``Forbes C.J. & Burton J. S.V.

``1 Roll. 59 Bulstrode."

The next three lines are in Dowling's shorthand except for ``2 Bulst. 306"

Published by the Division of Law, Macquarie University