Executors of Brown v. Brabham , 3 Ohio 275 ( 1827 )

By the Court :

It is not necessary to examine many of the grounds that have-been taken and relied on in the argument. It appears to us¡ that Brown’s receipt is decisive of the matter in controversy. That receipt was given in 1811, after' the settlement, referred to in the-bill, had been made. It acknowledges that Brown had received, on account of the balance now claimed, a draft for six hundred and eighty dollars, drawn on Porter, in favor of Butler, and indorsed by him.

A number of objections have been taken to the allowance of this receipt. It is contended, in the first place, that the proceeds of the draft have never been received by Brown. This seems to be the fact, but as he constituted Butler his agent, to collect the-money, by whom it was received, and misapplied, he can not avail himself of this objection. A payment to Butler was in effect payment to the complainant, whose agent he was, and it does not rest with him to charge the defendants with the consequences of his-own misplaced confidence.

It is said, in the second place, that the draft was Butler’s private property, and that being indebted to Brown in his private, as-well as in his partnership capacity, he had a right to direct the money to be applied on either account. This is not denied, but so-far as there is evidence on this point, it goes to show, that the draft was assigned for the purpose of extinguishing the partnership debt, but if not, there is no evidence to show that Butler directed it to be otherwise applied; and if no directions were given, the house had a right to credit it to either account, and he has applied it to the partnership account. The receipt given for the. draft specifies that application, and was received without objection. Butler did not dispute it in his life, nor has *it been* -disputed since, by any person .legally representing him, and certainly the complainant, who made the application, can not now -be allowed to question it.

Again, it is said that Brown used due diligence by employing a ■confidential agent, as he had a right to do. This is admitted; but as that confidential agent collected the money, it is the same thing to the defendant as if Brown had collected it himself. The amount -of the draft exceeds the balance due on the settlement, and extinguishes the whole debt. It is not necessary, therefore, to consider •any other point made in the cause.

Bill dismissed.