12 Barb. 456 | N.Y. Sup. Ct. | 1852
The defendant received the money as the attorney of Deforest, for whom he transacted the business of foreclosing the mortgage. He is therefore to be considered as the agent, and Deforest the principal; and the question presented is whether, conceding that the plaintiff was entitled to the surplus, the action, under such circumstances, can be maintained against the agent.
The case of Stephens v. Badcock, (3 Barn, & Ald. 354, 23 Eng. Com. Law, 93,) is directly in point. The plaintiff was rector of Ludgvan; the defendant had been clerk to Samuel John, an attorney whom the plaintiff had for several years employed to receive his rents and tithes. John, being in embarrassed circumstances, left home and never returned. After his departure, and before the cause of it was known in his office, the defendant received from one of the plaintiff’s parishioners (which he was in fact authorized to do) the sum of £9, and gave a receipt as follows:
“ Rec’d 20 Aug., 1827, of Mr. H. F. £9, for half a year’s composition for tithes, due to Rev. J. Stephens at Lady day last past.
For Mr. S. John,
John Badcock.”
At the time of this transaction, John was indebted to the plaintiff on a balance of account. It did not appear that John owed the defendant. "The defendant refusing to pay the plaintiff the £9, assumpsit was brought, and the king’s bench held the action would not lie, for the reason that the defendant received the money as the clerk of his master, and was accountable to him for it; the master, on the other hand, being answerable to the client for the sum received by the clerk. This case can not be distinguished in principle from that under consideration. Both present the question whether a mere agent, not acting in any official capacity, while he acts within the scope of
The recent case of Colvin v. Holbrook, (2 Comst. 126,) recognizes this same principle, and must be regarded as settling the law in this state. It was a suit brought against a deputy sheriff, to recover money rightfully received by him in that character, on a redemption of lands he had sold on execution, and which he refused, on demand, to pay over to the person to whom it belonged. The only question was whether the action would lie against the deputy sheriff; and judgment was given against the plaintiff, on the ground that the action in such case would only lie against the sheriff. The court. laid out of view the official character of the defendant, and put the case on the ground most favorable to the plaintiff; deciding only the question, whether an agent receiving money from his principal in pursuance of a valid authority, without fraud, duress or mistake, is liable to an action in- behalf of a person who is ultimately entitled to the money, for neglecting to pay the same over upon request, and before it is paid over to the principal. The court said the rule is universal, that a known agent is not responsible to third persons for acts done by him in pursuance of an authority rightfully conferred on him, and they held the principal alone responsible.
The cases relied on by the plaintiff’s counsel in this case, were there examined and commented on by Gardiner, J., and shown to be cases where the principal had no right to receive the money, and of course could confer none upon the agent; or where it was paid by mistake; or where the agent exceeded his authority and -consequently could not claim its protection.
There is no doubt that where money is paid to the agent by mistake, or under such circumstances that it may be recovered back from the principal by the party paying, it may be recovered back from the agent if he has not paid it to the principal, or altered his situation in relation to him. (7 Cowen, 460. But where it is properly paid to the agent, the party ultimately entitled can recover only from the principal. In other words,
Judgment of referee affirmed.
Parker, Wright and Harris, Justices.]