Howe v. Savory , 1867 N.Y. App. Div. LEXIS 80 ( 1867 )

Jambs C. Smith, J.

I think the defense of the non-joinder of Augustus T. Savory as a party plaintiff was properly overruled, in view of the peculiar circumstances of the case. By the terms of the agreement between him and the plaintiff, as found by the referee, the business relating to their joint adventure was to be done in the name of the plaintiff alone, and it was so done in fact. Savory contributed nothing to the adventure in money, services or time. The defendants dealt with the plaintiff in his individual name, and treated him as the only person' in interest. Under these circumstances, I am of opinion the plaintiff may properly maintain the action. If Savory has, in fact, an interest in the subject matter of the action, as between himself and the plaintiff!, the latter may be regarded as the trustee of Savory to that extent, and as such entitled to sue in his own name.

[New York General Term, April 3, 1867.

The defendants set up a counter-claim for moneys received by the plaintiff, from third persons, by way of commissions on goods purchased of them by him as the clerk of the defendants, and on their account. The general rule is that sums received from third persons by an agent in the business of his principal, either as profits or compensation, belong to the principal. This rule being for the benefit of the principal, he may waive it, and with his consent the agent may retain to his own use" moneys thus received. The evidence of such consent, however, should be clear and satisfactory. In the present case the referee has found that the commissions paid by Moore & Co. were received by the plaintiff with thd express consent of the defendants, and at their suggestion. The counter-claim for the item was, therefore, properly disallowed. But it is not found that the commissions paid by Suplee and by Morrison were received by the plaintiff with the defendants’ consent or knowledge, or that there was any waiver of the rule as to those items. It follows that the plaintiff' is not entitled to retain them, and that the counterclaim should be allowed to that extent.

The judgment should be reversed, and a new trial ordered, unless the plaintiff will remit the amount of the commissions received from Suplee & Morrison, with interest thereon, in which case the judgment, so reduced,- should be affirmed,with costs.

Ingraham, J.

The evidence, shows that the commissions from Moore & Go. were received by consent of the defendants ; and such consent may be inferred as to the commissions paid by the others, and from the knowledge of the defendants that the plaintiff was so acting, without any objection on the part of the defendants.

Leonard, P. J. dissented. Judgment reversed.

Leonard, Ingraham and J. C. Smith, Justices.]