DWIGHT, C.
The appeal from the order denying a new trial cannot be entertained in this court.
On the appeal from the judgment, the defendant claims that the referee should have dismissed the complaint, on the ground that, as the summons is for relief, and, according to his view, the action is in tort for the conversion of gold, and the claim is for $10,000 damages, consequent on the tort, the plaintiff cannot recover on contract merely for a debt due.
I do not think that the present action is framed in tort. The allegations are all such as would be properly made if one sought to recover from his agent on an accounting. The complaint alleges the employment of the defendant, his receipt of Hofflin's money, the failure of the defendant to account for the money or the proceeds, or to pay the same to Hofflin, and his refusal to pay the money or the proceeds to the plaintiff, though requested to do so. These allegations plainly are framed on the view that the defendant was bound to make over not specific money, but only to give that or its proceeds, or in other words, simply to account, in his character of agent. An action to hold him upon this liability is an ordinary action upon contract. It is true that, in connection with these statements, it is asserted that the defendant "converted the property to his own use." This is, however, merely surplusage. Under all the circumstances, it is an immaterial allegation. It is a mere deduction from the statements of fact, and in the connection in which it is used, it is not traversable. Conaughty v. Nichols ( 42 N.Y., 83) is in point. The complaint in that case was framed on the theory of an agency, and there were sufficient allegations to show the defendant's duty to account. Then there followed a statement that the defendant refused to pay, and had " converted the plaintiff's property to his own use." The court held that if the words "converted the same to his own use," had been omitted, there would have been a complete cause of action upon contract. Those words were unnecessary to be stated, and superfluous. Their insertion, accordingly, had no effect upon the cause of action, and the plaintiff was allowed to recover. I think that this case was rightly decided, though it has met with some criticism.
The true theory of that case is, that the words, as there used, were a mere legal conclusion, drawn by the pleader from the facts which he had averred. The pleader had stated facts from which that conclusion did not logically follow. It is not legally true that a commission merchant who has sold goods and received the price does, by retaining the price, convert it to his own use, so as to make him liable in an action of trover. ( Walter v. Bennett, 16 N.Y., 250.) Had it been the correct exposition of the law that such retention is truly a conversion, and had the allegations been framed on such a theory, I concede that the plaintiff could not, upon the authorities, recover upon proof which showed the defendant to be liable upon a contract. ( Walter v. Bennett, supra.) That, however, is not this case. Conaughty v. Nichols, considered from this point of view, is perfectly sound, and only maintains that an action upon contract does not cease to be such because it contains an incorrect legal conclusion having the aspect of a tort. See, also, Ledwich v. McKim (53 N.Y., 307-316), where the principle in Conaughty v. Nichols is approved.
This view in no respect conflicts with Ross v. Mather ( 51 N Y, 108). That was an entirely different case. The complaint in that case contained all the elements of a complaint for fraud. The averments were not conclusions of law, as in the allegations of conversion in Conaughty v. Nichols and in the case at bar, but statements of specific facts. There was, among other things, a positive averment of a false statement, and of knowledge, on the part of the defendant, of its falsity, and of the fact that the purchaser was fraudulently deceived. These statements were absolutely necessary to the action, considered as an action of tort. They were out of place in an action on contract. The court held that the plaintiff could only recover on the theory of a fraud. A case so different in its facts is no authority for overruling Conaughty v. Nichols. The cases may well stand together. The court, in Ross v. Mather, did not intend to go counter to that case. (Page 112.) It also holds that the fact that the summons is for relief is immaterial. The same remark must be made as to the prayer for damages. The present case is put distinctly on the ground that no other action would lie against the defendant, except one upon contract. ( Walter v. Bennett, 16 N.Y., 250; Weymouth v. Boyer, 1 Ves. Jr., 416; Harris v. Schultz, 40 Barb., 315.) The allegations are sufficient to sustain that view, and the statement of a conversion is an erroneous legal conclusion from the facts averred, in its nature not traversable, and doing no possible harm to the defendant.
The next claim of the defendant is, that the referee erred in rendering judgment in currency, and that the recovery, if had at all, should have been for $4,153.75 in gold.
This view, I think, would have been correct, had it not been for the stipulation hereafter noticed. The law distinctly recognizes two species of currency, gold coin and legal tender money. Where a contract, either express or implied, is to be discharged in gold coin, the judgment should follow the contract, and should be for coin. No other rule will do complete justice to all the parties. The rule is perfectly well established in the case of express contracts. ( Chrysler v. Renois, 43 N.Y., 210; Bronson v. Rhodes, 7 Wall., 229; Cheang-Kee v. United States, 3 id., 320.) The same rule has been applied to the case of the conversion of gold coin. ( Kellogg v. Sweeny, 46 N.Y., 291.) The principle extends to such cases as the present, where the right to recover is based on an implied contract. It is difficult to see how any other view could ever have been taken. As gold coin and legal tender money are equally lawful money, there would, in the absence of statutory provision to the contrary, be logically just as much reason for holding that a contract to pay paper dollars should be estimated in a court of justice in gold coin, as that a contract to pay gold coin should be estimated in paper dollars.
The effect of the stipulations between the parties must now be considered. Before the case was summed up, the plaintiff's counsel made various admissions, apparently for the benefit of the defendant. These, the referee states, were accepted by both parties. Among them was one that the defendant paid the sheriff, on an execution issued August 4, 1868, the sum of $5,946.89 in currency. This admission, made for the purpose of the trial, after all the evidence was closed, must be regarded as absolutely true, and as taking the place of all the other evidence upon the same subject. The admissions were accompanied by the statement "that the only question of fact is whether Rosenstock had notice of the assignment to the plaintiff before the attachment was served on him." The apparent purpose of these admissions was to authorize the referee, in case he found for the plaintiff, to order judgment for the sum named in currency. Besides, it was an admission that the defendant had the plaintiff's money in currency at the time he paid it over to the sheriff. Accordingly the plaintiff can recover it in that form. If an agent takes the gold of his principal and converts it into currency, or other property, the principal is not confined to his claim for gold, but may, instead thereof, claim the currency or other property. ( Moore v. Moore, 5 N.Y., 256; Story on Agency, § 229.)
The only further question is, whether the attachment and seizure of the fund was a protection to the defendant.
A preliminary inquiry is as to the regularity of the sheriff's proceedings. It is said that the property was "capable of manual delivery," and that accordingly the case is not governed by section 235 of the Code. That section provides that "the execution of the attachment upon any property incapable of manual delivery, shall be made by leaving a certified copy of the warrant of attachment * * * with the debtor or the individual holding such property, with a notice showing the property levied on."
The property in the present case was "incapable of manual delivery." The defendant was under no obligation to keep on hand the identical coin which he received. He was only bound to account for its proceeds. ( Walter v. Bennett, supra.) His liability was a debt, and the claim of Hofflin, or his assignee, the plaintiff, was, of course, incapable of manual delivery. The statute contemplates a levy by the sheriff upon two kinds of property: (1) Tangible property, as lands, goods and chattels. (2) Property incapable of manual delivery, etc. ( Clarke v. Goodridge, 41 N.Y., 213.) The present case belongs to the latter class. It was accordingly requisite that the sheriff should follow the provisions of the Code (§ 235), and indorse a "notice showing the property levied on." This he did not do within the meaning of the act. The property should have been specified in the notice of the sheriff, and the interest of the debtor referred to with reasonable certainty. ( Clarke v. Goodridge, supra.) The sheriff referred to the subject of the attachment as though it were the property of the firm of which Hofflin was a member, instead of the private property of Hofflin himself, and his notice in no respect pointed out the claim in controversy. The notice was plainly insufficient, and the defendant was under no obligation to give heed to it.
If I am wrong in this respect, it will be necessary to consider whether the attachment, though perfectly regular, would hold the property which had already been assigned to the plaintiff before the sheriff's levy. The referee has found that Hofflin's claim was assigned January 10, 1867; the levy took place in September, of the same year. There was at that time no interest on the part of Hofflin in the debt or claim which had been already assigned by him. It is well settled in this State, that an assignment of a thing in action passes the whole title to the assignee, as between him and a subsequent assignee. Notice is only necessary as to the debtor. ( Muir v. Schenck, 3 Hill, 228; Bradley v. Root, 5 Paige, 632; Richardson v. Ainsworth, 20 How. Pr., 521; see 2 Story on Equity, § 1047.)
No attention can be paid to the suggestion made on the argument, that the attachment proceedings may be regarded as an impounding of the debt. This could not be, as there was no debt belonging to Hofflin which could be impounded. The most that can be urged for the defendant is, that if he has in any way changed his position for want of knowledge of the assignment, it should be regarded as so far inoperative as to him. ( Gibson v. Haggerty, 37 N.Y., 555.) The attachment proceedings in themselves, as between the plaintiff and N. Strauss (the plaintiff in the action in which the attachment was had), were absolutely ineffectual. The evidence shows, and the referee finds, that before any payment was made by the defendant, he had full notice of the plaintiff's ownership. This was given to him when the present action was commenced, viz., on December 23, 1867. Payment was made by the defendant August 4th, 1868. Notwithstanding his knowledge of the facts of the case, he neglected to bring them to the attention of the court in the suit in which the attachment issued, or to seek any relief by interpleader or other appropriate method of ascertaining the rights of the respective claimants. He voluntarily took it upon himself to decide that the attachment proceedings were regular and valid, and that he lawfully might pay his debt to the sheriff. If he judged erroneously, he has only himself to blame. The right of the plaintiff to collect his debt remains wholly unaffected by the defendant's unauthorized act. ( Scranton v. The Farmers and Mechanics' Bank of Rochester, 24 N.Y., 427; Barnard v. Kobbe, 54 id., 516; Drake on Attachment, § 732; Lyman v. Cartwright, 3 E.D. Smith, 117.)
The judgment of the court below should be affirmed, with costs.
All concur.
Judgment affirmed.
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