3 F. 305 | S.D.N.Y. | 1880
This was an action brought by the plaintiff to recover of the defendant the amount of a $500 government bond, paid by the assistant treasurer, at New York, to the defendant, on the presentation of the same at his office in New York. The bond was payable to the order of Robert Mickle. It had indorsed upon it an assignment purporting to be signed by Robert Mickle, transferring it to Levi II. Borne. It was overdue when presented for redemption. The defendant presented with it a power of attorney, duly acknowledged, from Levi H. Borne, who lived in Indiana, authorizing him, as attorney of said Borne, to sell and assign or collect the said
“Beceived from Alexander Pinover, attorney, $600, in U. S. 5-20 bonds; payment made subject to examination and acceptance of bonds by the department at Washington.
“0. N. Patterson,
“Department Assistant Treasurer.”
The defendant at the same time executed upon the back of the bond the following instrument:
“Por value received I assign unto the secretary of the treasury for redemption. - ,
“Alexander Pinover, Attorney.
“November 4, 1878.”
The defendant was told to take the receipt to the cashier in another part of the building and get his money. He did so, and upon presentation of the receipt to the cashier he was paid the amount due on the bond, and gave a receipt for it as follows:
“New York, November 4, 1878.
“The treasury of the United States redeemed to Alexander Pinover United States 5-20 bonds, account, etc., $500.00 Interest, « » - - 7.64
$507.64
“Beceived payment.
"Alexander Pinover.”
Upon examination at Washington it was discovered that this bond was one which had been reported lost or stolen, and for which a duplicate had been issued to Bobert Mickle, upon his giving a bond of indemnity. Thereupon the plaintiff made demand upon the defendant for repayment of the money, and, that being refused, brought this suit to recover the same as money paid under a mistake of fact, alleging that what purported to be the signature of Bobert Mickle to the assignment was a forgery.
The answer of the defendant denied the forgery, and set up as a separate defence that he acted in good faith and only as
The jury were instructed that the taking and holding of tho receipt, till it was surrendered to the cashier, was some evidence of notice to tho defendant of its contents; that if in fact the defendant was informed that the bond was received subject to examination and acceptance at Washington, and if the signature to the assignment was a forgery, tho plaintiff was entitled to recover; that if the defendant used the receipt without any knowledge in fact of its contents, but merely as a token to be handed to the cashier as he was directed, then he was not chargeable with knowledge of its contents; and there being no disputo that the defendant acted in good faith, and was known to be and treated as an agent in the transaction, and had paid over the money to his principal, he was not liable to repay it.
Under these instructions the jury, besides finding the special verdict of forgery, found a verdict generally for the defendant. The plaintiff now moves for judgment on the ground that the finding of the fact of forgery entitles the plaintiff to a judgment, or in the alternative for a new trial for error of law and misdirection of the jury.
It is claimed that there was error in leaving it to the jury to determino, as a question of fact, whether the giving of the
It is also claimed by the plaintiff that money paid under a mistake of fact to one who is known to be and treated as an agent can be recovered back from the agent, even after he has paid it over to his principal, in case the principal had no right to give the agent authority to act. The argument is that one who has no right to receive money can give no authority to another to act as his agent in receiving it, and so that the power of attorney in such a case is a nullity, and no act done under it can avail the assumed agent as a defence. I think this reasoning is unsound, and not in accordance with the authorities. If A. holds B.’s notes and sends his servant to B. with the note demanding payment for A., and B., knowing that the person presenting the note is presenting it as servant or agent of A., and not for himself, thereupon takes the note and gives the money to the servant, he gives it to him for the purpose of having him pay over the money to A. Though nothing is said, the payment is with an implied direction to deliver the money to A. as surely as if B. should say: “Here,
If the agent acts in bad faith, or with knowledge of his principal's want of right to receive the money, or is himself a party to an illegal exaction of the money, or is not authorized by his assumed principal to act for him as where his power of attorney is a forgery, payment of the money over will be no defence. Miller v. Aris, 3 Esp. 231; Snowdon v. Davis, 1 Taunt. 359; Edwards v. Hodding, 5 Taunt. 416, [*815;] Seidil v. Peckworlh, 10 S. & R. 442. See, also Story’s Agency, (8ili Ed.) §§ 300, 301, and notes.
If the party receiving the money, though an agent in fact, does not disclose his agency to the party making the payment, there is of course no presumed consent or direction that he pay over, and payment to his principal will be no defence. In such a ease, having acted as a principal, he will not be permitted to defend on the ground that ho was not the principal. Canal Bank v. Bank of Albany, 1 Hill, 287, 293, 294.
This last case was followed in the ease of Bank of Commerce v. Union Bank, 3 N. Y. 230-237. This case, however, puts the liability on the equitable ground that “money paid by one party to another through mutual mistake of facts, in respect to which both were equally bound to inquire, may be recovered back.” It was a case of money paid upon a forged indorsement to a collecting bank, which did not, so far as
The principle thus stated is, perhaps, broad enough to charge with liability even an agent who has disclosed his agency; but the question was not directly raised, and can hardly be thought to have been within the consideration of the court, especially as the opinion in the ease referred to as settling the principle expressly distinguished the case of an agent who disclosed his agency from the case then before the court.
The case of The Kingston Bank v. Ettinge, 40 N. Y. 391-400, cites these cases m support of the general proposition that the fact that the party receiving the money was an agent, who had paid over to his principal, would be no defence. It does not advert to the distinction between an agent whose agency is- disclosed to the party paying, and one who acts as himself a principal. Nor was the case before the court one of agency.
In the same case the court cites and relies on Rheel v. Hicks, 25 N. Y. 289, where it was held that money paid to a public officer in compromise of a claim against the plaintiff, as the putative father of an alleged unborn bastard child, could be recovered back upon proof that the woman was not in fact pregnant, although the defendant had paid it over to the county. That seems to have been the case of money illegally exacted by a public officer, and therefore within some of the cases first above cited; not a.case in which the party re
In the ease of Cooke v. U. S. 91 U. S. 389, the question of the power of the assistant treasurer to bind the United States, in the matter of adjusting and paying claims against the government, was considered, and it was held that the secretary of the treasury alone has power to represent and bind the government in his department in this respect; that the powers of the assistant treasurers are limited and fixed by public laws, of which all persons must take notice. This case was not cited upon the trial of the present action. It was assumed, upon the trial, that the assistant treasurer at New York had authority to represent the government in tho redemption of this bond. It was upon this assumption that the ruling was made that it was incumbent on the plaintiff to show that the assistant treasurer gave notice to the defendant that he received the bond subject to examination and acceptance at Washington, in order that the plaintiff might have the benefit of that notice.
But it was held, in the case of Cooke v. U. S., that all the acts of the assistant treasurer in paying the debts of the United States are so subject to the approval of the secretary as matter of law. The question of actual notice was therefore wholly immaterial. Upon the same assumption it was ruled that if, without such notice, the defendant had paid over the money to his principal, it would shield him from liability; the theory of the charge being that in respect to this transaction the assistant treasurer was, in legal effect, the United States, and could bind the government by recognizing and treating with the defendant as the agent of another; and that, if he
For these errors the plaintiff is entitled to have the general verdict in favor of the defendant set aside; and upon the special verdict, that the name of the former owner of the bond was a forgery, the plaintiff is entitled to have judgment. The finding of this fact left no issue to be tried under the pleadings. The receipt of. the money is admitted in the answer. The special matter set up in the answer — the payment of the money immediately after its receipt to Borne, for whom defendant acted as attorney — constitutes no defence, because the plaintiff, upon the facts stated in the answer, never, by any public officer authorized to do so, paid the money to him as an agent. On the contrary, the officer alleged to have paid it, the assistant treasurer, had no authority on behalf of the government to consent that the defendant pay it to his principal.
“Where a special verdict is inconsistent with a general verdict the former controls the latter and the court must render judgment accordingly.” N. Y. Code of Civil Procedure, § 1188; Fraschieris v. Henriques, 6 Abb. Pr. (N. S.) 251, 263.
There was no evidence of any regulation by the secretary of the treasury conferring upon the assistant treasurer the power to redeem this bond, or to receive it for redemption, otherwise than subject to examination and acceptance at Washington; nor is any such regulation averred in the answer. No point is made in the answer, nor was there any evidence,' that there was any such delay in the examination of the bond at Washington that the defendant thereby lost
The point made, that knowledge on the part of the defendant that the bond was received subject to examination and acceptance at Washington is not equivalent to notice not to pay over, and does not affect the defendant, is untenable, because, as held above, the assistant treasurer had no authority, even thus provisionally, to recognize and treat with the defendant as an agent of another, except subject to the examination and approval of the secretary; and the secretary, having disapproved and disaffirmed his action in the premises, the defendant can have no benefit therefrom.
Verdict in favor of the defendant set aside, and judgment for the plaintiff in the special verdict.