111 N.Y.S. 709 | N.Y. App. Term. | 1908
This action was brought to recover for goods sold and delivered. The defendant pleads payment. The defendant communicated with the plaintiffs as to the debt and was informed that the plaintiffs had placed the matter in the hands of their attorney. On January 27, 1907, the defendant mailed a check for the. amount of the debt to the plaintiffs’ attorney. This check was received at nine-thirty a. m. on January 28, 1907, by a clerk in the office of the plaintiffs’ attorney. The check was drawn upon the Mechanics and Traders’ Bank and was made payable to the order of the plaintiffs. The clerk, on receiving the check, indorsed the plaintiffs’ name upon it and also his own name and delivered it to the attorney for the plaintiffs. The at
Although the court erroneously excluded evidence which the defendant offered to show that the plaintiffs’ attorney had authority to accept the check, we think that such authority may he implied from the other facts that were proved. When the defendant communicated with the plaintiffs, he was told that the matter was in the hands of their attorney; and this reference to the attorney held him out as having power to act for the plaintiffs. Walsh v. Hartford Ins. Co., 73 N. Y. 10. In view also of the fact that the objections of the counsel for the plaintiffs prevented the defendant from proving that the attorney had power to receive the check, the plaintiffs on this appeal cannot be heard to assert that their attorney was without this power. So far as this appeal is concerned, therefore, the plaintiffs’ attorney must be regarded as the agent of the plaintiffs and as acting within the scope of his authority in accepting the check. As between the plaintiffs and the defendant, the loss resulting from the failure of the bank should fall upon the former. Their agent received the check and, at that time and until the bank closed its doors, the account of the defendant in the bank was ample to meet the check. The
Judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.
Gildersleeve and MacLean, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.