Waters v. Brown ( 1924 )

Crain, J.

The defendant, appellant, was a workman employed by plaintiffs’ grantor, a domestic corporation. He occupied at an agreed rental a house belonging at the date- of his employment to plaintiffs’ grantor and collected for plaintiffs’ grantor the rents of other premises owned by it. His employment was terminable by a three months’ notice. This notice plaintiffs’ grantor gave. At the expiration of the three months plaintiffs’ grantor owed defendant wages and defendant owed plaintiffs’ grantor rent, part being the rent of premises occupied by himself and the balance rent of premises collected by him occupied by others. He sued plaintiffs’ grantor for the amount by which his unpaid wages exceeded the amounts due by him for rent and for rents collected. The plaintiffs’ grantor being the defendant in such action, was represented by the attorney now representing plaintiffs. The plaintiffs’ grantor in such action interposed a counterclaim, being the claim now sued upon, and the same claim with the amount of which the grantor was credited by defendant herein in the prior action brought by him as plaintiff against the grantor, and then withdrew the counterclaim. Defendant here (plaintiff in such action) recovered judgment for the amount sued for. He was served in the court room in which his case was tried after judgment therein with the summons in this action. He appears to have had no knowledge of any transfer of title by plaintiffs’ grantor to plaintiffs of the property in question. The deed to plaintiffs was not recorded. They dealt with the defendant without disclosing the transfer to them and in a way to deceive defendant respecting the fact of the transfer. Their conduct led defendant to give a credit in the action brought by him against their grantor which he would not have given had he known the facts. His recovery against their grantor was diminished in consequence, and as plaintiffs held the property under a conveyance as trustees for their grantor and had knowledge of the action against their ■ grantor and of the fact that credit was given therein to their grantor, they should not be allowed to prevail in the present case. To permit this judgment to stand would in effect be to deprive defendant of a part of the salary due him.

Judgment reversed, with thirty dollars costs, and judgment directed for the defendant dismissing the complaint on the merits.

Bijur and McCook, JJ., concur.

Judgment reversed and judgment for the defendant. dismissing the complaint.