1 Daly 54 | New York Court of Common Pleas | 1861
The complaint was that the defendants, composing the firm of Maybe w, Talbot & Co., had received two hundred dollars to and for the nse and benefit of the plaintiff, which they, upon request, refused to pay over. The answer contained a denial of having received the sum specified, or any money for the use of the plaintiff, and also denied that the defendants were co-partners.
At the trial before the Court, without a jury, the plaintiff, to establish his case, produced two letters, dated June 3d and 14th, 1853, and in the defendant’s possession. They were written and sent to the defendants by D. J. Sawyer, and the first of which enclosed a note of C. A. Mansfield for two hundred dollars, with a request, in substance, that they would collect it, by suit, if necessary, without delay, and remit the money to the plaintiff. The second letter appears to have been written after the defendants had received the money on the note, and had informed Sawyer by telegraph that it had been attached for the debts uf James B. Mansfield. In this letter, after stating that the money does not belong to James B. Mansfield, Sawyer adds, “ If yon can get it out of his hands, and pay it over to Berry, I should he glad.”
Subsequently, the pluinnff demanded the money of the defendants Talbot and Butler, when they answered that they .should be happy “ to pay over the money if there was not an attachment or trusteeship,” giving no other reason for their refusal.
After it was further shown that the defendant Simpson was not a member of the defendant’s firm, but that their partnership consisted of the other defendants, the plaintiff rested his case, and a non-suit was then asked for by the defendants, upon various grounds, but denied, and an exception taken to such denial.
The testimony of the defendants’ witnesses did not, in any degree, impair the ease thus shown by the plaintiff, nor did the defendants attempt to show that the money had been attached as stated by them at the time of the demand made, but, as a part of the defence, a letter was offered in evidence from Sawyer to the defendants, dated June 15. 1858. Its admission being objected to by the plaintiff, it was ruled out by the Judge, and an exception taken by the defendants to such ruling.
At the close of the trial, upon the application of the plaintiff) the name of the defendant Simpson was stricken out of the complaint, and subsequently judgment was given against the remaining defendants, who were shown to have been co-partners at the time the money was tints received.
I am unable to understand upon what ground this judgment can be deemed erroneous. The evidence derived from the letters in the defendant’s possession, being wholly uncontradicted, clearly showed that they had received, at the request of Sawyer, two hundred dollars upon the trust that they would pay it over to the plaintiff. This was equivalent to an express promise to the plaintiff that they would pay the money to him (Weston v. Barker, 12 Johns. 276), and so, in the most strict and literal sense, it was money received to his use. Israel v. Douglass, 1 H. Black. 229 ; Ward v. Evans, 3 Raymond, 928; S. C. 6 Modern R. 36. It came into the hands of the defendants, accompanied by a special direction from Sawyer, to whom it belonged, to pay it to the plaintiff, and under such circumstances'it is well settled, that an action may be maintained by the person to whose use the money has been received. De Bernalis v. Fuller, 14 East, 590, note, S. C.; 2 Camp. N. P. C. 426 ; Baker v. Birch, 3 Id. 109 ; Therasson v. McSpedon, 2 Hilton, 1: Del. & Hud. Canal Co. v. Westchester Co. B'k., 4 Denio, 97, and cases cited. This right does not depend upon a consideration moving from the party who brings the action, it being only necessary that the promise shall be founded upon some valid consideration moving from the person entitled to the money at the time of giving the direction. Judson v. Gray, 17 Howard P. R. 289; affirmed in Court of Appeals.
In regard to the point talcerr by the defendants on the argument before us, that the money was the property of James B. Mansfield, and therefore dirl not belong to either Sawyer or the plaintiff, it is only necessary to say that no such fact was established at the trial, nor was it set up in the answer as a de
Judgment affirmed.
