Winkley v. Foye , 33 N.H. 171 ( 1856 )

Fowler, J.

Where a consignment or remittance is made, with instructions to pay over the proceeds to a third person, the appropriation is not absolute, for it amounts to no more than a mandate from a principal to his agent. It may be revoked at any time before it is executed, or at least before any engagement is entered into by the mandatary with the third person, to execute it for his benefit; and it will be revoked by any prior disposition of the property, inconsistent with such execution. 2 Story’s Eq. Jurisp. sec. 1046, 972, 1036a, 1036b, 1045; Scott v. Parcher, 3 Merivale 662, 664; Acton v. Woodgate, 2 Mylne & Keen 492.

Where goods are delivered to a bailee to be delivered over to another, if the delivery over is not for a valuable consideration, the bailor, at any time before the actual delivery, may countermand his bailment, and, after such countermand, a delivery over by the bailee will not be good. Story on Bailments, sec. 104 ; Bacon’s Abr., Bailment, D.

Where one person remits a bill to another for the use of third persons, it is the right of the remittee to give and countermand his own directions respecting the bill as often as he pleases, and the person to whom the bill is remitted will still hold it, and its amount when received, for the use of the remittee himself, until, by some arrangement entered into by himself with the person who is the object of the remittance, he has precluded himself from so doing, and appropriated the remittance to the use of such person. Williams v. Everett, 14 East 597.

Until both the party receiving a consignment, or remittance, has done some act recognizing the appropriation of it to the particular purposes specified, and the person for whose benefit it was remitted or consigned has signified his acceptance of the consignment or remittance, so as to create a privity between them, the property or proceeds remain at the risk and on account of the remittee or owner, and subject to his order. Tiernan & a. v. Jackson, 5 Peters 601.

The ease before us finds there was some evidence from which it would have been competent for the jury to find that the money in controversy belonged to the plaintiff, and that he, in his own name, delivered it to the defendant, to be applied in full or part payment, as the case might be, of the debt and costs of a suit brought by the defendant against the son and son-in-law of the plaintiff, but that the money never had been so applied, and that before the commencement of the present suit the plaintiff had demanded the money of the defendant. Now if this were the plaintiff’s money, deposited by him with the defendant for a particular purpose, and he were under no legal obligation thus to appropriate it, he had a right to countermand that appropriation of it and recall the money at any time before it had been applied to that purpose, or before such an engagement had been entered into by the defendant with the son and son-in-law of the plaintiff, for whose benefit the money was originally deposited, as created a privity between them, and amounted to an application of it to their use. Any thing less than that was unimportant and immaterial, so far as the plaintiff’s right to recall the money, and if not delivered up on demand, to recover the same in the present suit, was concerned. Until that had been done, the money remained the property of the plaintiff, and subject to his control.

But the court permitted the defendant to show that on the trial of his suit against the plaintiff’s son and son-in-law, he offered to apply the money, so far as it would go, but they declined to have it applied in that suit, and it never was so applied. This evidence had no tendency to prove that the plaintiff was not entitled to recover back the money, if it originally belonged to him, for which purpose it seems to have been admitted. The offer to apply it according to its original appropriation by the plaintiff, for the benefit of his son and son-in-law in the defendant’s suit against them, having been refused by them, was wholly immaterial, so far as the plaintiff’s rights were concerned. Had the son and son-in-law accepted the offer, so as to have created a privity between themselves and the defendant, the testimony showing that fact would have been material and competent. As it was, the defendant might as well have shown almost any other fact in evidence, as this unaccepted offer to apply the money. As evidence to rebut and control the plaintiff’s right to recover back his own money, it was clearly incompetent. On that question it was immaterial, and therefore inadmissible. What instructions may have been given in relation to it, does not very clearly appear from the case, but the fact that the question of its admissibility was reserved and transferred, would indicate such importance to have been attached to it, that, in the opinion of the judge who tried the cause, it may have influenced the decision of the

The evidence, then, having been incompetent and inadmissible, although immaterial upon the question on which it was admitted, we think the verdict, which may have been influenced by it, ¶ should not be permitted to stand. As well observed by the court in a former decision in this suit, [8 Foster 518] “ evidence which has no legitimate bearing may still have an unfavorable influence upon a claim or defence. It may be calculated to excite prejudices, or raise false impressions, and in such cases, its admission may furnish good ground to set aside a verdict.” Such would seem to have been the character of the evidence improperly admitted in this case. It had no legitimate bearing, and whatever the instructions in regard to it may have been, it was well calculated to prejudice the minds of the jury against the plaintiff’s right to recover.

Verdiet set aside and new trial granted.