Fish v. Jacobsohn

1 Keyes 539 | NY | 1864

Weight, J.

It is insisted that the judgment is erroneous, and for the reasons, first, that the check was without consideration ; and, second, that the action was improperly brought in the name of the plaintiff.' Neither of these objections I regard as tenable.

1. The check imported a consideration, and the onus was-on the defendant to show that, in fact, there was.none-This was not necessarily shown by an admission in the pleading,- or by proving that it was given in settlement of a balance of account due from Ulman to Lumley for Lumley’s share of t;he proceeds of the Piccoloinini operatic representations and concerts.. If the money or .funds-for which the check was given wen? in the defendant’s handset the. time óf giving it to. the plaintiff, there was ■ no want of consideration for the promise on the fq.ee of the cheek. It .was, not shown that he, did not hold the funds for which.the. check was given,, and it is inferable irom the facts ¡found that he did.¡ The.facts were these: Lumley arranged with Ulman that Piccoloinini should give representations and-concerts in the United States for their joint -benefit. The 'plaintiff was sent from-England as the agent of Lumley to receive all moneys accruing, from such representations and concerts, to examine,.:vouch and settle all accounts on behalf of Lumley, and to pay to Ulman such sums as might becoming to-him under--the contract-between Uumley and Ulman. The defendant was ¡Ulman’s general agent and manager in respect to such representations and concerts, and,, ¡acted as such up to the time of giving the check in suit. He. appears to have, in person, received and paid all . money on account of-the performances that-took place. In, February, 1859y in the city of New York,: the plaintiff demanded of the defendant, as Ulman’s manager (Ulman being absent from the city), a settlement of the account of all such representations and -concerts - as- had, then-.been given, which settlement the defendant.-promised should take place. No settlement, however, was at that time had. The performances went on in February and-March, in New York'and elsewhere in the United States, under the management of the defendant, the plaintiff receiving from time to time from the defendant several sums of money, on account of the proceeds ,nf such performances, to which Lumley was entitled. One of these performances was. to take, place, in New Orleans on the 11th March, -1859, both the defendant and Ulman him-. self being in the city at the time. On that day the plaintiff, demanding of Ulman a settlement as t'a all such concerts as had been given, he promised such settlement, and to give him the check of, the defendant for the amount or balance which Lumley was entitled to receive; and the day following. promised that if he did .not furnish such check by noon of. the 14th March to assign to the plaintiff all the receipts of such representations and concerts which should he subsequently given, after deducting -the amount to be paid to the manager of the theater, until the plaintiff had received such balance. On the 14th March, Ulman, by writing, addressed to the manager of the theater, assigned to the plaintiff all the money accruing to him (Ulman) for such remaining performances in Hew Orleans. On' the 16th March the defendant made and delivered to the plaintiff the check in suit for the balance, amounting to $2,555.75, of the share to which Lumley was entitled of the proceeds of such representations and concerts prior to the 11th March, 1859, and the share, amounting to $444.50, to which-he was entitled of the proceeds of the performance on the last mentioned day. On receiving the check a receipt for the specific items composing the amount of it was given to the defendant personally.

The transaction, then, in substance, was this: The proceeds of the performances in which Lumley and Ulman were entitled to share, were collected and held by the defendant. The net receipts of the concerts had come into his hands. The fact of Ulman promising, and the defendant giving, his own check and taking a receipt in his own name for the amount due, shows conclusively that the very money for .which the check was given was in the defendant’s hands. If it was, there was no want of consideration for the promise .on the. face of the check. Instead of paying over Lumley’s portion of the proceeds of • the concerts held by him, the defendant substitutes his check therefor, and induces the plaintiff to accept it. Holding Ulman’s or Lumley’s funds in his .hands, and inducing the plaintiff to take his order instead of the funds themselves, the objection that there was ho consideration for suclr order is without force. Hor can the defendant, after-thus inducing the plaintiff to accept his check, question the authority of the latter to receive it. Uo one ■ but the plaintiff’s principal could repudiate that authority.

2. The plaintiff was the proper party to bring the action. ■The promise was made to him. It was a contract in writing - with him personally. Before the Code, an action" on the check would have been maintainable only in the name of the plaintiff. Since the Code every action must be prosecuted in the name of the real party in interest, “ except that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted ” (Code, §§ 111, 113); and it is declared that the “trustee of an express trust, within the meaning of the section, shall be construed to include a person with whom, or in whose name, a contract is made for. the benefit of another.” (§ 113.) So that whether the contract was made for the benefit of the plaintiff individually or for the benefit of Lumley, the plaintiff was equally entitled to sue.

The judgment of the Supreme Court should be affirmed. .

Iugbaham, J.

The defendant was the agent of D. Ulman. As such agent he received the proceeds of operatic performances. The plaintiff claimed a balance due, and Ulman promised to deliver defendant’s check in payment or assign the receipts of certain concerts. He requested defendant to give the check, and plaintiff gave a receipt for the same on Ulman’s account and credited Ulman with the amount. Afterward the concerts were held, and plaintiff paid to defendant the share of Ulman which he had received of the concerts, and claims that the said check was held upon a good consideration.

. The defendant objects to the recovery upon the ground that the check was given without consideration, and that that fact may be inquired into between the parties. Admitting the law to be as .contended for on the part of the defendant, still there is another rule which takes this case out of the class of cases relied on by the defendant. This check was given by the defendant in payment of the claim of Lumley due from Ulman and at his request. It would be the same as a note borrowed by Ulman from the defendant for the purpose of paying Lumley’s claim. In such a case it becomes accommodation paper in .the hands of the party for whom it was made and to whom it was passed, and if Lumley had a good claim against [Jlman he can collect the amount of this check passed to him by the defendant for the express purpose of paying this debt. This was so held in Seneea, Ccnmty Bank v. Bfecvp (3 Comst., 442), in a case where the accommodation party put his name to the note without any restriction, and the court held it was rightly used when paid by the holder for a precedent debt, and that the consideration was sufficient. The present case is a stronger one, for the check was paid by the defendant himself in discharge of the debt due from TJlman to Lumley. An objection is made that the action should be in the name of Lumley. The evidence shows, and the referee finds, that the plaintiff credited Lumley with the amount, and afterward, having received the check, the plaintiff paid over to Ulman’s agent the proceeds of certain concerts in his hands and which were held by him as security. These facts gave Fish such an interest in the check as would enable him to maintain an action upon it in his own name, independent of the fact that the contract was with him and the check made payable to his order.

The judgment should be affirmed.

All concur,

Affirmed.