26 Barb. 94 | N.Y. Sup. Ct. | 1857
The justice, at the special term, found that the money with which Whittlesey paid Potter the amount due on the Parsons mortgage was the money of the defendant Mumford, and was in his, Whittlesey’s, hands for the purpose of investment. , This, I think, was warranted hy the evidence. Assuming that Mrs. Mumford is chargeable with knowledge of all the facts in relation to the transactions between Whittlesey, Varick and Gorsline, it was nevertheless competent for her to make Whittlesey her agent to invest her money, either with specific instructions as to the -nature of the investment to be made and the particular securities to be taken, or with general discretionary power in those respects. It was competent for her to purchase the Parsons mortgage from Potter, with her own money, and to take an assignment of it to hold for her own benefit, as an investment of her
But it is contended that the legal effect of what took place between Whittlesey and Potter, was a payment and satisfaction of the Parsons mortgage. To this I cannot assent. It is quite probable, and I think the evidence warrants the conclusion, that Potter, at the time he received the payment, on the 2d July, 1849, supposed he was receiving it in satisfaction of the mortgage. But it does not follow that Whittlesey so intended. On the contrary, the fact that in the same interview, and before they had closed the business which brought them together, Whittlesey required an assignment of the mortgage from Potter, which the latter accordingly gave, is strong evidence to show that Whittlesey did not intend to satisfy the mortgage; and the fact that Potter then executed the assignment, shows that whatever had been his intention in receiving the money, or his impression as to the effect of it, he ultimately
In my judgment, the evidence shows a valid assignment of the Parsons mortgage to the defendant Mumford, which she is entitled to hold and enforce.
I agree with the learned justice at the special term, that the plaintiff is entitled to be relieved as "against the Grorsline mortgage to Varick, to the amount due on Parsons’ mortgage to Potter. The justice properly remarks that, “as between the plaintiff and the defendant Varick, the agreement of Whittlesey to pay off the Potter mortgage, and the retention of the money by him for that purpose, must bind the defendant Varick to see that mortgage discharged before the mortgage of Grorsline to him, should become valid for the full amount of $3000. That this agreement was part and parcel of the contract of loan, and Varick must be held for its fulfillment, and must he held responsible as between him and Grorsline and the plaintiff, his grantee, for the fidelity of his agent.”
The judgment of the special term should be modified, so as to declare the mortgage of Parsons to Potter a good and valid
Jojmson, Welles and Smith, Justices.]