Opinion
January 26, 1906.
I.R. Oeland [ S.S. Myers with him on the brief], for the appellant.
Frank E. Blackwell, for the respondent.
Present — JENKS, HOOKER, RICH and MILLER, JJ.
If the action is capable of being regarded only as a suit to recover damages for false and fraudulent representations, the reasons given by the learned trial judge in support of his disposition of the case might be deemed satisfactory. It seems to us, however, that it may fairly be viewed as an action for conversion, based on the alleged promise of the defendant to invest the plaintiff's $10,000 for him in a water company, his acknowledged failure to do so, and his retention of the money to his own use. Certainly there is some evidence of such a promise; the defendant admits that he did not invest the money for the plaintiff at all; and his assertion that it was a loan is an implication, if any further evidence than his failure to return it were needed, that he has applied the money to his own purposes. We think there was a question for the jury and that the complaint should not have been dismissed. The judge was not authorized to decide as matter of fact that the transaction was in reality a loan, in view of the plaintiff's testimony tending to show that such was not its true character; the circumstance that the form of the papers indicated a loan was not conclusive.
The plaintiff appears to have fared rather hardly in this litigation. He has parted with $10,000, without receiving any value for it, to a stranger who makes no substantial excuse or apology for not repaying the money and who has succeeded in imposing a penalty of $250 upon the plaintiff in the shape of an additional allowance by way of costs for trying to get it back.
The judgment and both orders should be reversed.
Judgment and orders reversed and new trial granted, costs to abide the event.