Peckham v. Ketchum et al.

with them. There was no fraud or negligence on either side. Still they were invalid. The brokers paid the purchase money back to the vendees, as also a certain sum which, under rules of the Stock Exchange, had been prescribed to be paid in such cases. They then sued their principal, who paid into Court the purchase money but contested as to the additional sum. defense was sustained.

The

The Court say: "It seems to be agreed that when a principal employs an agent, the former is bound to indemnify the latter, in respect of all payments which may be made by him in the due course of his employment. The agent may recover moneys so paid under a special count stating a promise to indemnify, or under a count for money paid. The vendees were entitled to recover back the money paid for the stock."

I do not think that the employment of the defendants, in this case, can justly be treated as an employment to purchase genuine stock, to the extent and import of making them guarantors of the validity of that which they should purchase. It was rather to purchase what in the market was passing as stock of this description. (Lamert v. Heath, 15 Mees. & Welsb., 486.) Then the rule of indemnity to the agent when the principal is a seller, involves the exemption of the agent from responsibility, when, under similar circumstances, the principal is the purchaser.

Again, an agent employed to purchase a commodity of a particular character or quality, is only bound to use all the circumspection and diligence which a prudent purchaser himself would exercise. The nature of the article, the opportunity of detecting the defect or inferiority, with proper diligence, are elements in every case of this description. (Mainwaring v. Brandon, 8 Taunt., 202; Van Alen v. Vanderpoel, 6 John. R., 69; Liotard v. Graves, 3 Caines' R., 226.) The defendants could not be held responsi ble under this rule.

Judgment should be rendered for the defendants with the costs as adjusted in the submission, viz., $100.12.

Fish v. Jacobsohn.

WILLIAM FISH, Plaintiff and Respondent, v. ISAAC JACOBSOHN, Appellant.

1. In an action by the payee of a check against the drawer, it is no defense that it was given by the defendant for a debt owing by a third person to one who was the payee's principal; and that the payee accepted it as agent for the debt due to his principal, the payee being expressly authorized to settle such debt and receive payment of it.

2. Such agent, on receipt of such check, having credited his principal with the amount of it, and having subsequently, in consequence of receiving it and before it was protested, paid other moneys to his principal's said debtor which otherwise he might have retained and applied upon the debt for which the check was given, and such check being in terms payable to such agent's order, he can maintain an action on it, in his own name.

(Before HOFFMAN, PIERREPONT and MONCRIEF, J. J.)

Heard, November 3; decided, December 17, 1859.

AN appeal by the defendant from a judgment in favor of the plaintiff, entered on the report of B. W. Bonney, Esq., as Referee.

The action is on a check, or bill of exchange, in these words, viz.:

"NEW YORK, March 16, 1859. "L. S. Lawrence & Co., Bankers, pay to Mr. William Fish, or order, three thousand dollars. $3,000 25.

"ISAAC JACOBSOHN."

L. S. Lawrence & Co. refused to pay this check, and it was protested, and due notice was given to the defendant.

The plaintiff resides in London, and is the agent of Benjamin Lumley, who also resides there, and is the proprietor of a theatre. The plaintiff came to New York in February, 1859, to receive, as such agent, all moneys coming to Lumley as his share of the proceeds of representations and concerts given and then being given in the United States, by Picolomini, pursuant to a contract in that behalf between Picolomini, Lumley & B. Ullman.

Fish v. Jacobsohn.

In February and March, 1859, several such representations and concerts were given in New York and in other parts of the United States, and various sums of money were paid to the plaintiff as agent of Lumley, on account of Lumley's portion of the proceeds thereof. The defendant was, at the time, acting as Ullman's agent in this business at New York; Ullman being absent at the south. The plaintiff demanded of the defendant, as Ullman's agent, a full settlement, which the defendant promised should take place.

On the 11th of March, 1859, there was a representation at New Orleans. The plaintiff being then in that city, demanded of Ullman, who was also there, a full settlement. On the 12th of said March, Ullman promised the plaintiff to give to him, before noon of the 14th, the defendant's check for the whole sum due to Lumley, or to assign the whole net proceeds of future concerts, until Lumley was paid the whole balance due to him. On the 14th of March he made such an assignment to the plaintiff, and on the 16th of March the defendant, at New Orleans, gave to the plaintiff the check in question; which check was given by the defendant, and received by the plaintiff, for $3,000.25, that being the aggregate of two sums, viz.: $2,555.75 for the balance of proceeds of concerts prior to March 11, 1859, due to Lumley, and $444.50, Lumley's share of the proceeds of the concert of March 11, 1859. The plaintiff gave a receipt for the check, specifying for what it had been given, and in his account with Lumley, credited him with the amount of the check.

The plaintiff, under the assignment aforesaid, received the whole net proceeds of three concerts given on the 16th, 18th and 19th of said March; and having received defendant's said check for the sums and cause above stated, paid to Ullman's agent, Ullman's portion of the proceeds of the said three concerts. The defendant defended this action, brought on his said check, on the grounds that he gave the check without consideration, and that no action would lie on it in the plaintiff's name; and if any one could recover upon it, Lumley alone, as the actual party in interest, must sue as plaintiff..

The Referee decided that the plaintiff received and held the check for a good and sufficient consideration, and could main

Fish v. Jacobsohn.

tain an action upon it in his own name, and was entitled to a judgment for $3,068.49 (principal and interest) and his costs. The defendant excepted to, these conclusions severally, and appealed to the general term from the judgment entered in accordance with the Referee's decision.

John Townshend, for defendant, (appellant,)

Insisted (1st.) that the consideration of the check was open to inquiry between the parties to this action; (2d.) the presumption is that the check was received as a conditional, and not as an absolute payment; (3d.) an agent, prima facie, has no right to receive payment otherwise than in money, and payment by a bill will be treated as unauthorized; (4th.) the promise of a third person to pay the preexisting debt of another, for which he is not liable, is without consideration and void.

Also, that it appears the plaintiff is suing as agent, and it is not alleged he had authority to receive the check; he was not the proper party to sue. The check was given to Lumley, and the plaintiff shows no authority to sue in his behalf.

T. H. Rodman, for plaintiff, (respondent.)

I. The complaint avers that the check was given in settlement of a balance due by Ullman to Lumley. The answer, that it was given to pay a debt claimed to be due by Ullman to Lumley, but that in fact no such debt was then and there due.

On this answer, on which the cause was brought to trial, the plaintiff was entitled to judgment.

II. The amendment, called a further answer, did not alter the case except by requiring the plaintiff to prove the presentment of the check, which he did.

III. In addition to this, he proved by his own oath the whole

transaction.

Defendant was Ullman's manager; promised plaintiff a settlement of accounts, on his arrival in New York from England. Defendant procrastinated, and evaded a settlement in New York; paid $1,500 on account in Cincinnati, and promised to close the whole matter when the party reached New Orleans.

There Ullman promised to settle by giving defendant's check, and if he failed to do so, to assign to him the net receipts of the

Fish v. Jacobsohn.

theatre at New Orleans, until the balance was liquidated, and did so.

Then defendant promised his check and gave it, and took a receipt for it in settlement of balance of concert account, and profits of performance in New Orleans.

On the faith of this check, plaintiff paid over the portion of expenses of the next performance in New Orleans, and Ullman's share of profits which plaintiff had previously received; and did the same as to three subsequent performances.

Upon these facts, the conclusions of law necessarily follow. The judgment should be affirmed, with costs.

BY THE COURT-HOFFMAN, J. Two of the propositions of the learned counsel of the defendants, in the elaborate points submitted, may be conceded to be law. One, that the consideration on which the draft was given could be inquired into between these parties, and that a plea of no consideration made out could be a defense. The other is, that the giving of the draft in question did not extinguish Lumley's demand upon Ullman.

The case of Crofts v. Beale, (5 Eng. L. & Eq. R., 408,) is strong upon the first point, and applicable in its facts to the present case. Pratt v. Foote, (5 Seld., 463,) and Noel v. Murray, (3 Kern., 167,) may be referred to for the second proposition. "The substitution of one executory agreement to pay for another, is no satisfaction of the debt, unless there is an express agreement to accept the new obligation as a satisfaction of the old."

But a distinction exists on the facts of the present case, growing out of the law of mercantile paper, which is sufficient to sustain the action. It is well established law in this Court, that a note made for the accommodation of a payee, and by him passed to another as security for a preexisting debt, may be recovered upon. (De Zeng v. Fyfe, 1 Bosw. R., 335, and cases cited.) In that of The Bank of Rutland v. Buck, (5 Wend., 66,) the surety to a note given for the accommodation of the principal, was held liable when passed away as collateral security for payment of a judgment.

Thus, in the present case, the defendant has given this draft for the accommodation and benefit of Ullman, and it has gone