Hayes v. Kedzie

concurred, believing that the defendant assumed to act as the agent of the plaintiffs, and not as a superintendent, in taking the order.

(dissenting):

The defendant was one of the superintendents of the poor, and as such held the order in question. It had not been delivered to. the plaintiffs, and had not become their property. If, as might very possibly be the case, there had been another order in the defendant’s possession, of the same amount, the plaintiffs could not have insisted that one of these orders was their property, and the other was not. Treating the orders as bills of exchange, they were in possession of the drawer, not delivered. Until delivery, the plaintiffs had no title to any one of them. If the superintendents who drew this order, or any one of them, had chosen to destroy it, the plaintiffs would have had no cause of action on the ground of the destruction of their property. It does not add to their rights that the defendant, one of these superintendents, intended to deliver this order to the plaintiffs. If he did deliver it, then of course they have no cause of action. If he did not deliver it, then their claim against the county has not been paid. If the superintendents had voluntarily handed this order, and all the orders to John Doe, it would have been a great violation of official duty; and they might possibly have been liable -to the plaintiffs for a neglect to audit.' But the order would not have been the property of 'the plaintiffs, so that they could sue for the negligent carrying of it, or for its conversion.

The plaintiffs claim that, as the defendant took the order for the purpose of delivering it to the plaintiffs, the payees, he became at their option, their agent.

But the objection to that view, is this: The defendant, as one of the superintendents, was rightfully in possession of the order. His mere intention to deliver it to the plaintiffs at some future time was not an act on their behalf, as their agent, which they could ratify. And his .possession of the order was not the plaintiffs’' possession. Even his carrying it from the place where it was drawn to some other place, was an act which he could do as superintendent. It was not an act done on behalf of the plaintiffs and constituted no delivery to them. There was nothing for them to ratify.

To illustrate : If a firm, being indebted to some person, should make a note for the amount, payable to bearer, and one of the firm should take the note, with the intention of giving it to the creditor, *583and should afterwards give it to some other person, the creditor could not treat this as a conversion, or as the negligent act of a bailee. It is said by the plaintiffs that this order was made out for them. Undoubtedly it was the intention of the superintendents to deliver this order to the plaintiffs. But it all rested in intention. And the intention to deliver this order to the plaintiffs did not make it theirs. Some act was necessary by which it should pass from the control of the superintendents to some other person, either to the plaintiffs or to some person acting for the plaintiffs, other than the superintendents themselves. If the superintendents or the defendant, had delivered the order to some other person who assumed to act as the agent of the plaintiffs, it would be competent for the plaintiffs to ratify the act of that assumed agent. But no such case exists. Bor neither the superintendents, as a body, nor the defendant as one of them, can be considered as the agents or agent of the plaintiffs. Neither they, nor he, assumed to act as such.

If, for instance, this order was in fact left with Mr. Buss for the plaintiffs, and Mr. Buss received it on their behalf, they might ratify the act of Mr. Buss in receiving it. Bor then it would have been delivered by one who had full control over it, to another whose only control would be that of agent, actual or assumed, of the plaintiffs. But until such delivery, or some similar delivery, the defendant and the other superintendents had the full title to and possession of the order, and were not in any sense agents of the plaintiffs, actual or assumed.

The judgment should be reversed, with costs.

Judgment affirmed, with costs.

By pleading to tbe merits, tbe defendant must be held to have withdrawn or abandoned bis demurrers. (Peck v. Cowing, 1 Denio, 222 ; Irvine v. Forbes, 11 Barb., 587 ; Harper v. Leal, 10 How., 276 ; Jones v. Thompson, 6 Hill, 621.) Tbe ease must be examined on the issues raised by tbe answer to tbe merits.

It is urged tbat tbe appeal in tbis case was on tbe law only, that it was not a case for a retrial in tbe County Court, for tbe reason tbat tbe claim litigated did not exceed fifty dollars. (Code, § 352.) Tbis point was not raised in tbe County Court, either by special' motion, as in Houghton v. Kenyon (38 How., 107), or by objection on tbe trial, if indeed it could have been made available there in either mode. True, tbe defendant moved for a nonsuit at tbe close of tbe trial, on tbe ground tbat tbe court bad no jurisdiction of tbe appeal, but for what particular reason does not appear. Tbe motion was therefore baseless, in so far as we can see. But tbe case was one for retrial. Tbis question was to be determined from tbe pleadings. By tbe complaint, tbe plaintiffs’ claims for which judgment was demanded exceeded fifty dollars. Sucb claims determined tbe right of tbe parties to a retrial on tbe appeal. (Code, § 352 ; Ovenshire v. Adee, 27 How., 368 ; Hobbs v. Wetherwax, 38 How., 385 ; *580Thompson v. Pine, 12 N. Y. Sup. Ct. Rep. [5 Hun], 647.) The case is, therefore, before us on the merits.

It was undisputed on the trial, that the draft was duly made out for Hayes, Borrill & Oo., on the treasurer, payable to the firm or bearer, and that the defendant took it into his possession to deliver to the payees; also, that it was afterwards presented to the treasurer and was paid by him in due course of business. The principal question litigated, was whether the defendant made delivery of the draft to the payees, as he, assumed to do. The jury found that he did not, and it may be added that by the verdict, it was found also that the payees never received payment of the draft from any quarter. Then the case is this : (1) That the defendant took the draft for the payees, to be delivered by him to them ; (2) that he omitted to make delivery of it; (3) that it was afterwards presented to the drawee for payment by some one other than the payees, and was paid by him in due course of -business ; and (4), that when called upon by the payees for the draft, the defendant took the ground that he had delivered it to them in fact. These facts made out a prima faoie case against the defendant as matter of law. Thus the onus was cast upon him to show something, discharging him from liability. The plaintiffs had made application to him for the draft, and could not obtain it. The rule was laid down in Coykendall v. Eaton (37 How., 438-441) that a mere gratuitous bailee who delivers the property to a wrong party, or, who after demand does not in any way account for its loss, is liable to the true owner for its value. Now what defense did the defendant interpose? First, that he had in fact delivered the draft to the payees. But the jury found againt him on this issue. Secondly, he sought to show that he delivered it to Mr. Russ, as if this fact if proved would discharge him. But as to this even, there was a conflict of evidence, and the jury may have found against him also on this issue. Indeed, if the case turned upon this issue such must be deemed to have been the finding. It was going quite as far as the court could properly go in this case, holding in mind the evidence submitted, to instruct the jury that delivery to Russ would discharge the. defendant in case, the payees authorized such delivery or gave it ratification, for it might well have been insisted that there was no evidence whatever of such authorization or ratification. Now the *581onus was on the defendant. It lay with him to relieve himself from liability. This he might do by showing the loss of the draft withoiit gross negligence on his part, or that it was taken from him by force or fraud. But neither of these defenses was attempted. He put his defense at all times when called upon to answer for the draft, on other grounds, to wit, that he had made delivery to the payees or to Buss. This was what he claimed when approached upon the subject before the suit was commenced, and this was insisted upon in the pleadings and on the trial. In this defense he failed. The jury found against him on a very serious conflict of evidence. He must be held to be concluded by their verdict.

It is urged that the plaintiffs failed to show any title to the draft, that it was never delivered. But the defendant is not at liberty to hold this position. He assumed an agency and duty in regard to the draft which the plaintiffs might recognize, and to which they might bind him by a ratification. It has been repeatedly held that where one party assumes the performance of a trust or duty for the benefit of another, although without his knowledge at the time, the latter may affirm the trust or duty and enforce its due performance, (Commercial Bank v. Warren, 15 N. Y., 577-580 ; Heermans v. Clarkson, 61 id., 171.) Here the plaintiffs have elected to hold the defendant to the obligation he assumed to perform for their benefit. The case is therefore the same as if the defendant, on the plaintiffs’ request, had taken charge of the draft to make delivery of it to them. Thus the draft became the plaintiffs’ property in the hands of the defendant, and he was liable to them for it to the extent of the obligation which he assumed.

The conclusion reached on this examination of the case,'based on .the verdict of the jury in favor of the plaintiffs on every material question of fact, necessitates an affirmance of the judgment. And it may be here remarked that the view above taken of the ease leaves no question for consideration on the exceptions to the charge of the judge or on his refusal to charge as requested.

The judgment must be affirmed, with costs.