51 Barb. 86 | N.Y. Sup. Ct. | 1865
The main question in this case is whether the defendant is liable for the excess of the amount due on the two notes sold by him, over and above the sum which he received therefor. The referee has deduced such liability as a legal conclusion, from the facts found by him, that the notes referred to were sold by the defendant without authority from the plaintiff’s assignors, and that they were good security for their respective amounts. If the findings are warranted by the evidence, the conclusion is correct.
. The defendant insists that the finding of the referee that the sale of the notes was without authority, is not warranted by the evidence. It appears from the testimony that the notes were executed by the president of the Madison and Indianapolis Eailroad Company, dated the 1st of October, 1850, for $1404.60, each, and were payable at the office of Winslow, Lanier & Co. in the city of Hew York, one in two years, and the other in three years from their date. They were delivered to the defendant in settlement of certain claims against the company, held by
The defendant next argues that by reason of the form of the complaint, he is not liable for the excess of the amount of the notes over and above the sum actually paid to him. The complaint contains allegations which are equivalent in substance to the count for money had and received to the whole amount' of the notes. It is true that, in general, to support the action for money had and received, it is necessary to prove that the defendant actually received money or its equivalent, for the use of the plaintiff. But the rule is not without exceptions. Thus, it is well settled, that where property is received as money, the action will lie, the same as if money itself had been re
This view of the case disposes of the further objection taken by the defendant that the claim in suit did not pass to the plaintiff under the assignment from Cook, Clark and Carey. The assignment transferred, in terms, all the right, title and interest of the assignors and each of them, to the notes, and the avails thereof, and the moneys received by the defendant upon the selling and arranging of the claims against the railroad company. It consequently passed their right of action against him for money had and received to the full amount of the notes referred to.
It remains to advert briefly to some other positions taken by the defendant’s counsel.
1. The assignment is absolute and valid on its face, and transfers to the plaintiff a perfect legal title. His right to maintain the action is not affected by the fact that nothing was paid for the assignment, (27 Barb. 178; 38 id. 575;) nor by the circumstance that Cook, one of the assignors, agreed to take care of the case and to save the plaintiff from costs if he was unsuccessful. •
2. It does not appear that the defendant and the plain
Johnson, J. C. Smith and E. D. Smith, Justices.]
3. It is not apparent, as claimed by the defendant, that the referee has made a mistake in respect to the value of the defendant’s services. He has probably adopted the sum stated by the defendant in his letter of the 24th August, 1861, as the measure of the compensation to which he was entitled up to that time. In that letter, the defendant does not claim any thing for disbursements in addition to the sum stated by him, and the referee was warranted in adopting that sum.
The judgment should be affirmed.
Judgment affirmed.