153 N.Y.S. 227 | N.Y. App. Div. | 1915
Lead Opinion
This action is for moneys had and received. In March, 1908, two automobiles belonging to plaintiff were destroyed while in transit on the International and Great Northern Railway Company with a resultant loss of $3,553. Plaintiff was also protected to the extent of $2,139 by a policy of insurance by the Columbia Insurance Company. The latter company paid tho amount for which it was liable to plaintiff, receiving from the latter a paper, which assumed some importance in the trial of the case, and was known as Exhibit B. This paper reads as follows: “In consideration of your advancing us the sum of Twenty one hundred thirty-nine and 00/100 Dollars $2139.00 as a loan to be repaid without interest as recovery may be effected from the carriers in respect of the undernoted merchandise, we hereby agree to put forward a claim against the carriers and / or bailees of the said merchandise in whose hands the same received damage and upon receiving payment from them we hereby undertake to refund you whatever is recovered up to the amount of this loan $2,139.00. All over this amount to be retained by us.
“It is further understood and agreed that you are to be responsible for all costs, attorney’s fees and expenses incurred in connection with the claim.”
It is to be observed that while the paper speaks of the money paid by the insurance company as a loan to be repaid without interest, such promise of repayment is contingent upon a recovery from the carrier, and also that there is no assignment
The plaintiff’s right to have been paid the sums for which it now sues is so clear that we should content ourselves with affirming the judgment without writing an opinion were it not for a defense which is strenuously insisted upon and which deserves consideration. In collecting the money defendant acted, as he well knew, as plaintiff’s agent, and the money collected belonged to plaintiff. He was chargeable with the knowledge, which he could have acquired by inquiry, of plaintiff’s rights, which were to receive the whole amount collected less $2,139 due to the insurance company. Indeed, strictly speaking, as to this sum defendant had no right to pay over the money to the insurance company without plaintiff’s consent. The one defense which seems to call for consideration rests upon the following facts: It was on October 20, 1911, that defendant sent his check to plaintiff. As already said, plaintiff at once protested as to the amount, and began active negotiations to induce defendant to pay more. There never was any question but that plaintiff was entitled at all events to the amount represented by the check. Pending these negotiations plaintiff held the check and did not deposit it for collection until April 4, 1912, when it was paid. The defendant now insists that the retention and deposit of this check operated as an accord and satisfaction. To support this defense he relies upon Fuller v. Kemp (138 N. Y. 231) and Nassoiy v. Tomlinson (148 id. 326), both of which had to do with claims wholly unliquidated. Both of these cases were examined and distinguished in Eames Vacuum Brake Co. v. Prosser (157 N. Y. 289), the court saying: “In these cases the doctrine of accord and satisfaction was carried to the extreme limit, and it is not our purpose to further extend the rule.” The case last cited was similar to the present in this, that the controversy was between a principal and its agent; that the agent had col
The language we have quoted fits exactly the facts in the present case. The money which defendant collected was the plaintiff’s money. No dispute arose until the check was received by plaintiff and no dispute ever aróse as to plaintiff’s right to receive and retain, at all events, the amount represented by the check. It concededly belonged to plaintiff. The only dispute was as to the sums of money belonging to plaintiff which defendant had wrongfully diverted or retained. As to this the plaintiff promptly protested. It seems to us impossible to say that, under these circumstances, the retention by plaintiff of
The determination of the Appellate Term is affirmed, with costs.
Ingraham, P. J., Clarke- and Hotchkiss, JJ., concurred; Dowling, J., dissented.
Dissenting Opinion
I dissent upon the ground of an accord and satisfaction between the parties.
Determination affirmed, with costs.