Marye v. Martin ( 1873 )

By the Court,

Whitman, C. J.:

One Lee, clerk for appellant, converted twenty shares of mining stock, appellant’s property; by the kindness of respondent sold the same through his brokers at less than usual commissions; received nine hundred dollars or thereabouts,' of which he deposited six hundred. Afterwards he confessed his dereliction, but refused to name the party through whom he sold. Shortly after, appellant with General Williams, an attorney at law, had an interview with Lee in the private rooms of appellant, when and where Lee divulged the name of respondent as the party through whose offices he had disposed of the stock, disclosed the amount obtained therefor, and delivered to General Williams the certificate of deposit for six hundred dollars, portion of the proceeds of the sale; also the check of Driscoll & Co. for $217 22, amount due from them to Lee for wages, he having been for some time previous in their employ.

This money was taken by General Williams, and by him specially deposited in bank, with the announced intention of delivery to the loser in the transaction. Lee, however, was never informed of this intention. His remembrance is, that he indorsed the certificate of deposit before appellant and delivered it to him : this is denied by appelant and General Williams, who testify that appellant left his room by request of General Williams, immediately after furnishing pen and ink, being told that the transaction about to be had was General Williams’ own. However that may be, Lee surrendered that certificate and gave up his own money, as he supposed to appellant, on account of the converted stock.

Was he justified in such supposition by the acts of the parties? And first as to the capacity in which General Williams acted. Lee calls him counsel for appellant, his lawyer. Appellant says that he invited General Williams to be present as a friend; that nothing was said about his acting as attorney, but if. he so considered himself that it is all right! General Williams disclaims any intention to act for appellant, but says he got the money from Lee and holds the same for the benefit of the losing party.

Lee, however, as has been said, knew nothing of this intention; he saw appellant and General Williams acting apparently as one; and he gave the money to one as to the other; he was kept in the dark as to the use to be made of the money and .certainly acted according to his lights, when he supposed that he was paying out his own money, in addition to giving up the remnant of the proceeds of the sale of the stock, in settlement to that extent of his wrong. If he was sane, he could have had no other idea. He was called to an interview with appellant and General Williams in the private rooms of appellant; he was then and there asked by appellant what he had done with the money received for the stock; he confesses; General Williams then sends him for the certificate of deposit, which is indorsed and delivered in the presence of and to appellant — -according to Lee’s remembrance; not so according to General Williams, who is positive while appellant is uncertain upon the point; but General Williams is undoubtedly correct, as he had a plan which he was engaged in carrying out unknown either to Lee or appellant, which would naturally fix the exact facts firmly in his memory. Lee then told appellant that he had some money with Driscoll & Oo. General Williams ascertained the amount and afterwards, in absence of Appellant, took the check of Driscoll & Oo. therefor.

Any person, it would seem, would have been .perfectly' justified in considering a thing, done under the eircumstances of the interview as to its subject matter witb General Williams, as done with appellant, without entering into any nice distinctions as to tbe special capacity in wbicb tbe former was acting. Of course, as attorney, pure and simple, be would bave bad no authority to compromise bis client’s rights, nor would tbe client be bound thereby, exeept on previous instruction or subsequent ratification; but this does not seem to bave been tbe limit of bis position as regarded by appellant. He was to him more than agent or attorney; be was mentor, guide, philosopher and friend, and more. There seems to bave been a merger of identity, and for tbe nonce Williams was Marye, while he was suspended as actor.

Appellant calls General Williams to assist in ascertaining, for one thing, the whereabouts of the money received on sale of the converted stock; then, with complete self abnegation, leaves bis own room at General Williams’ request, so soon as that information has been obtained, that General Williams may bave a private transaction with Lee about that very money.' He is in the bank and sees General Williams make a special deposit of money, wbicb be “suspected” bad been obtained from Lee and says nothing; though, as one of the objects of the interview was to obtain knowledge as to that money, be would naturally bave evinced some interest at such a peculiar deposit, bad not be looked upon General Williams as bis very self. He afterwards sees Williams, who tells him that be bad gotten from Lee the certificate of deposit and the money due from Driscoll & Co. and bad deposited the same in bis own name at the bank, saying at the same time, “This is my own transaction; you bave nothing to do with it; and I intend to bold the money for the benefit of the party who loses by this affair; whoever loses I will pay it to.” Still be said nothing, out of bis implicit trust; and possibly for the reason that be hoped that such a transaction could be carried out, (although a moment’s thought would have told him the contrary,) that he might preserve his remedy against respondent, whom he had already warned of liability and intention to hold; and, if unsuccessful, then that he might fall bach upon the money thus held for the benefit of the loser.

The law allows no such double stringing of bows. The moment appellant was told that part of the proceeds of the sale of the stock and other moneys, property of Lee, had been obtained from him by General Williams as the result of the interview before spoken of and did not repudiate the transaction so far as he was concerned, he, as to Lee, induced the belief that his tort was waived and that he stood a simple debtor of appellant. Any other view would tend to work a great wrong upon Lee. Remember always, that he not^ only disgorged the remaining proceeds of that tort, but also gave up his own money. What for ? Undoubtedly for protection ; he was thereby to escape legal consequences, other than mere repayment. His position, if appellant’s theory of the result of the interview be correct, is idiotic — deprived of his money and unbenefited by its surrender. His testimony as to his understanding of the effect of the payment is consonant with reason and should be received; he supposed he was making a settlement; and from the facts, on which alone he could base his reason, the law will so hold.

If Lee so believed, as he swore, and if he might rightfully and lawfully so believe, then such was the fact, notwithstanding any contrary intention of appellant and General Williams or either of them. If such was the fact, then there was no cause of action against respondent. So the preponderance of the evidence, wherefore the motion for a new trial was properly denied. The findings, that appellant had the knowledge recited above and that Lee paid the money to General Williams for appellant’s benefit, sustain the judgment.

It is affirmed.