23 F. Cas. 609 | U.S. Circuit Court for the District of Rhode Island | 1815
The record cannot be read; it is res inter alios acta. A former judgment can only be evidence, where it is between the same parties, or their privies. The parties here are not the same; so far, therefore, from its. being conclusive evidence against the plaintiff, as a
The defendant’s counsel then contended: 1. That as the money had never actually come into the hands of the defendants, or of their bankers, Perrot and Bineau, no recovery could be had against them. 2. That if a right of action had attached, it was waived by Mr. Boss, by the memorandum on the account.
The counsel for the plaintiffs denied the legal correctness of both positions, and cited Matthews v. Haydon, 2 Esp. 509.
(after ' summing up the evidence). There seems to be very little dispute as to the facts; and my duty now requires me to state the law on the points, which have been made at the bar. And I am of opinion, that as soon as the money was paid into the hands of D’Hotel, Thomas and Co. and by them, pursuant to their instructions, carried to the credit of Perrot and Bineau, the defendants were answerable, in the same manner as if it had been paid into tlieir own hands. Payment to their agent and credit to their account, by their order, was a payment to themselves. But this cause does not rest upon this principle, plain and incontestable as it seems to me to be. The money was actually drawn for by Perrot and Bineau, payable to a third person, in whose favor an acceptance was made. Here then there was a complete appropriation of the funds to their own use. From the moment of the acceptance, the money was legally transferred to the holder of the exchange, and neither Boss, nor the defendants, nor Perrot and Bineau, had any legal title to it.- No possession or use of the property could have been more complete. As to the point of waiver, it is rather a question of fact, than of law. It was competent for the plaintiff to waive his right to hold the defendants to payment, and to agree to look only to D’Hotel, Thomas and Co. But such an agreement ought to be proved by the most clear and satisfactory proof. The agent, Mr. Boss, has sworn explicitly, that he never made such agreement, and that the memorandum on the account was merely introduced at his solicitation, to show to his principals, that he had not misspent their funds. You will take also into consideration the peculiar circumstances in which he was placed, and decide for yourselves, whether an unfair advantage was not taken of them.
