Sheffer & Montgomery & Brough ( 1870 )

The opinion of the court was delivered, May 12th 1870, by

Agnew, J.

The clear and uncontradicted evidence in this case shows that the defendant received the sum of $1718.16, the proceeds of the wheat of the plaintiffs in the hands of E. A. Frick & Co., for sale on account of the plaintiffs, with a full knowledge of this fact; that indeed the wheat was sold by Erick & Co., at the request of the defendant in order to enable him to have the use of the money of the plaintiffs for a few days; and that he promised to return the same on the 8th of April following, in order to enable Erick & Co. to pay a draft of the plaintiffs dated 7th March 1866, at 30 days for $2000, and falling due April 9th 1866. The money clearly belonged to the plaintiffs until Erick & Co. paid their draft, a fact within the defendant’s power to prove by the production of the draft on a subpoena duces tecum to Erick & Co., or by other competent evidence. The reason of this is obvious. Erick & Co. were factors only for the sale of the wheat. As between them and the plaintiffs the property in the wheat was in the latter, whatever might be the rights of the former as factors, as to third persons. It is said they sold upon credit and guarantied the sales. But clearly neither their guaranty nor their acceptance of the drafts ipso facto makes them owners of the wheat as against their principals; Nothing but payment cawits equivalent could effect this. The draft was long overdue at the trial, and there was no evidence that it had been negotiated or that demand had been made by any third party of Erick &' Co. for its payment. The utmost presumption therefore was that the draft remained in the hands of the plaintiffs unpaid. This was not an action against Erick & Co., for the proceeds of the wheat, and a notice of special matter requiring the production of the draft by the plaintiffs as a condition in equity before recovery; but the action was against a third party, having no title either to the draft or the money, but bound to restore it to the owners, as money had and received to their use. The defendant could not ask a restoration of the draft as a condition precedent to a. verdict of recovery, but could only show payment by Erick & Co. of the price of the wheat to defeat the plaintiffs’ action. It was the money of the plaintiffs which he received and expressly promised to refund to meet the draft, and he was bound to pay it to the owner of the wheat, unless he could show that by the subsequent act of the plaintiffs they had been satisfied for the wheat, thus carrying over to Erick & Co. the right to the proceeds. In the absence of all evidence therefore that Erick & Co. had paid the draft, there could be no ground for averring a change in the property of the wheat or its proceeds from the plaintiffs to Erick & Co. The defendant had really no defence under the evidence, which was all on one side. It was of no consequence how Sheffer, the defendant, used the money; whether he paid a debt of Erick & Co. with it or not. He knew that he had received the money from the trustee and factor of the plaintiffs, whose wheat was sold at his own instance to enable him to get the money. He knew therefore that it was not the money of Erick & Co., and that he instigated them to do an illegal act, and to divert the money from their principals. This disposes of all of the assignments of error, for they all converge upon the same point, and the judgment of the court below must be affirmed. .

Judgment affirmed.