Thompson v. Elliott , 73 Ill. 221 ( 1874 )

Mr. Justice Scholfield

delivered the opinion of the Court:

We do not conceive that the question involved in the present case is so much one of law as of fact. The doctrine is pretty well settled, and is not controverted by appellee, that an agent employed to make or negotiate a contract is not, as of course, to be treated as having an incidental authority to receive payments which may become due on such contract. And it is further laid down by the authorities, that “ an agent, intrusted to receive payment of a negotiable or other instrument, is ordinarily deemed entitled to receive it only when and after it due, and not before it becomes due; but if there be a known usage of trade or course of business in a particular employment, or habit of dealing between the parties, extending the ordinary reach of the authority, that may well be held to give full validity to the act.” Story on Agency, § 98; Paley on Agency, by Lloyd, 290, 291.

Mcliea, the active member of the firm of E. G. Boucher & Co., and the person to whom the note in controversy was paid, swears that they had general authority to receive collections on notes due the plaintiffs; that the written contract between plaintiffs and E. G. Boucher & Co. was, in this respect, departed from; that when they held notes which were paid to him, he would write the plaintiffs that the payment had been made, and send the money by express, so they could return the note to him or send it to the maker. .The fact that the note was made payable at the office of E. G. Boucher & Co., justified the defendant in going there for the purpose of making payment, and MePea swears positively, not only that the receipt executed in the name of E. G. Boucher & Co., showing that the note had been paid, was executed by him as a member of the firm of E. G. Boucher & Co., but that he was authorized by the plaintiffs to execute it.

Notwithstanding the conflict, in some material respects, between the evidence of the plaintiffs and that of the defendant in regard to the authority of Boucher & Co. to receive payment of the note at the time it is shown to have been paid, we are unable to say that it preponderates so decidedly in favor of the plaintiffs as to justify us in setting aside the verdict of the jury.

The judgment is affirmed.

Judgment affirmed.