Artcher v. McDuffie , 1849 N.Y. App. Div. LEXIS 134 ( 1849 )

By the Court, Parker, J.

I will proceed to examine the several alleged grounds of error in the order in which they were presented on the argument. After a judgment record had been introduced, showing that on the 6th of May, 1839, a judgment was recovered in favor of the Commercial Bank of Albany against McDuffie, for $1403,19 damages and costs, Orlando Meads was called as a witness, and testified that a note against McDuffie, dated about the 8th of January, 1838, for over $1000, was passed to the witness by Artcher. The witness was then asked by the counsel for McDuffie, " Did you enter up this judgment on a note which you received from defendant?” This was objected to by Artcher’s counsel, “ unless the note was produced.” The objection was overruled and an exception taken. This was not an objection to proving the contents of the note. They had already been sufficiently stated, without objection. I think it was clearly competent to prove the fact that the judgment was entered on a note received from the defendant, and that the exception was not well taken.

Several objections were made to the admissibility of evidence, on the ground that it contradicted the bond and mortgage given by Wells and Wright to Artcher. But I think the counsel mistook entirely the effect of the evidence. It did not in any respect contradict the language of the bond and mortgage; nor was it offered for any such purpose. The object of its introduction was to show that McDuffie negotiated the sale to Wells and Wright, and by an agreement with Artcher was to have a certain portion of the proceeds. That Artcher in fact held a part of the proceeds of the bond and mortgage in trust for McDuffie. This was proper evidence, and a good foundation for the subsequent promise. (Artcher v. Zeh, 5 Hill, 203 ; Kane v. Gott, 24 Wend. 641.)

The third point is that Hazeltine, the clerk of Zeh, was permitted to prove the declarations of McDuffie. Hazeltine had been called as a witness and examined by the counsel of McDuffie, and proved a conversation with Artcher in which the latter promised to pay to Zeh the balance of the bond and mortgage against Wells and Wright, after deducting the judgment of §1403,14. On the cross-examination Artcher’s counsel asked the witness what reason he had for remembering that conversation. The witness answered that McDuffie, after giving the note to Zeh, said he would send in Artcher, when the counsel for Artcher made the objection to the witness’ stating, in answer, what McDuffie said; but the court admitted the evidence, as being the witness’ reason for remembering the conversation called out by the counsel objecting. I see no error in this. The counsel had called for the reason, and no objection was made until it had been given. I do not think he was at liberty afterwards to repudiate it, when he found the reason assigned gave weight to the evidence he sought to invalidate.

The witness, David Zeh, after relating different conversations with Artcher, on inquiry made by the counsel for McDuffie, stated in answer to a question put by the counsel for Artcher, that he had conversations with Artcher at other times, at the request of McDuffie, in 1840 ; and the counsel for Artcher then offered to show that Artcher at that time said he did not owe McDuffie any thing. This was objected to, and I think properly excluded. It certainly was not competent for Artcher to prove his own declarations made when McDuffie was not present ; and it did not change the rule that the conversations took place at McDuffie’s request.

Zeh testified that on the trial between himself and Artcher he released McDuffie for the purpose of making him a witness, and the counsel excepted to the admission of evidence as to the object of the release. If this evidence was offered for the purpose of attempting to change the legal effect of the release it should have been rejected; but I think it was competent to show that the release was not made at the time of the contract to transfer the demand against Artcher from McDuffie to Zeh ; for if executed at that time, it might have been a good consideration for the assignment, so as to take it out of the statute of frauds. (Artcher v. Zeh, 5 Hill, 200.)

I do not think the sixth point well taken. The recorder was right in refusing to nonsuit. The case presented questions of fact, which it belonged to the jury to determine, and there was no question of law involved which would have authorized a nonsuit.

By far the most serious question presented in this case is, whether the recorder erred in charging that McDuffie could recover under the count for money had and received, the $20 which Artcher had failed to collect on account of an error of computation made by his attorneys. It appeared by the testimony of Mr. Wells that this money had never in fact been paid, though the bond and mortgage had been delivered up to Wells and Wright. The general rule undoubtedly is that the action for money had and received will only lie where money has been received by the defendant. (Beardsley v. Root, 11 John. 464; Lucket v. Bohannon, 3 Bibb, 378; Maddison v. Wallace, 7 J. J. Marsh. 100; John v. Haggin, 6 Id. 581.) But negotiable notes received by the defendant are often regarded as money. (Floyd v. Day, 3 Mass. Rep. 405. Hemmenway v. Bradford, 14 Id. 122. Willie v. Green, 2 N. Hamp. Rep. 333. Clark v. Pinney, 6 Cowen, 297. Mason v. Waite, 17 Mass. Rep. 560. Ainslie v. Wilson, 7 Cowen, 662. Arms v. Ashley, 4 Pick. 74.) And when an attorney or agent has discharged a debt due to his principal, and applied that debt to pay his own debt, the amount of the debt so discharged may be recovered in this form of action. (Beardsley v. Root, 11 John. 464.) Where an agent, having sold land and received a part of the price, and taken notes for the balance, also might, with ordinary diligence have received the whole, and being called on for the money said “ he knew nothing about it,” he was held liable in this action. (Hemmenway v. Hemmenway, 5 Pick. 389.)

In this case, Artcher had the entire control of the bond and mortgage. If the facts were found by the jury as they were claimed by McDuffie to exist, it. was the duty of Artcher to collect the avails of the bond and mortgage, and pay over to him the proceeds, after deducting the judgment. If Artcher was to be regarded as the agent of McDuffie for this purpose, and discharged a part of the debt without payment, the facts would still fall short of the cases last cited; the sum in question not having gone, in any form, to his benefit. It could not ne said he had received money or what was to him an equivalent. But I think the count in the declaration on an account stated relieves this case from difficulty. It was proved that Artcher promised to pay the difference between the amount of the bond and mortgage and the judgment; and I think there was evidence sufficient to support that count, so as to include the $20. (1 Saund. Pl. 33; 1 Chit. Pl. 343; Holmes v. De Camp, 1 John. 34; Montgomery v. Ivers, 17 Id. 38.)

On the whole, therefore, I think none of the numerous exceptions in this case are well taken, and the judgment of the Albany mayor’s court must be affirmed with costs.