Whittaker v. Merrill

Assuming that there was a conversion by the defendants of the notes in question, either by the mode in which they obtained them from Converse, the agent of Evans, or as evidenced by their refusal to deliver them to Converse when he demanded them, the cases of McKee v. Judd, (2 Kern. 622,) and Waldron v. Willard, (17 N. Y. Rep. 466,) are decisive that the cause of action for that conversion, passed to the plaintiffs by the general assignment made to them shortly afterwards by Evans, of his property, debts and effects; and that, aside from a question of a defense by a levy under the attachment, the plaintiffs might' *391have counted and recovered upon that cause of action. The schedule annexed to the assignment, as forming part thereof, in terms embraces the notes, and states that they were then in the hands of, or under the control of, the defendants, and were wrongfully withheld from them by Evans. The assignment, independent of the schedule, is comprehensive enough to include that cause of action; and it is manifest, from the language of the schedule, that it was intended to be transferred. In the case first cited, it is held that a cause of action for the conversion of chattels is assignable; and in the other case it is adjudged, that where it is apparent from the terms of the assignment of- goods delivered to a common carrier to be carried, and which he had neglected to deliver, that it was intended to assign also a demand for a breach of the contract of carnage, although not so expressed directly, the assignment will have that operation. Those principles are directly in point, in the present case.

But the plaintiffs have counted only upon a conversion subsequent to the assignment, as shown by the refusal of the defendants to deliver the notes on a demand in their behalf— a cause of action accruing to them directly, and not to their assignor, and assigned to them—and they gave evidence tending to sustain it. I think it was not competent for the plaintiffs, under the complaint, after giving such evidence, to avail themselves, against the objection of the defendants, of the former cause of action. The objection is not of variance between the proof and the pleading, but to proving and recovering upon another and entirely distinct cause of action from that alleged in the complaint.

Restricting the plaintiffs to a cause of action accruing after the assignment, the previous seizure of the notes under the attachment seems to be fatal to the action. It was decided in this case, when formerly before the court at general term, that the levy could not be impeached collaterally, by evidence that the notes worn obtained by the plaintiffs fraudulently, with a view to such a seizure.

With these views of the case, no error to the prejudice of the plaintiffs was committed at the trial; and the judgment should he affirmed.

T. R. Strong, Welles and Johnson, Justices.]