Martin v. Matthews , 42 N.Y. St. Rep. 567 ( 1891 )

Barnard, P. J.

In October, 1889, one Clark Balcom bought a horse and ivagon of Frank A. Pierson, one of the defendants. A note was given for the whole amount. The note was at once transferred to the defendants, and discounted for their benefit. It was partly paid by Balcom, from time to time, and renewed, and finally was reduced to $275. In December, 1889, Balcom transferred property to the plaintiffs for a past indebtedness, and took employment under them in the same business which he had been conducting, and at the same place; the plaintiffs furnishing the stock. Balcom sold plaintiffs’ property to the defendants, and allowmd his own note as part payment of the bill for the goods thus sold belonging to plaintiffs. The transaction was wholly unauthorized and illegal, and constituted no payment. The proof as to the agency of Balcom, and that his sign continued over the door, has no relevancy, under the facts of this case. The defendants got plaintiffs’ property, and have not paid for it. An agent cannot discharge without actual payment. De Mets v. Dagrow, 53 N. Y. 635. The judgment should therefore be affirmed, with costs. All concur.