Rhodes v. Hinckley
Before: Murray
Synopsis
Where the defendant, being indebted to the plaintiff, a banking firm, made a payment on account in the bank, to one of the pilaintiff's clerks, and on a subsequent day agreed to lend to the clerk the amount thus paid, who took the money and used it, and the amount thus paid was never credited to the defendant on the books of the plaintiff: Held, that the amount paid by defendant, in the usual way of business, was a legal payment, and that defendant lost all control over it.
If defendant is ultimately liable for the amount thus advanced to the clerk, it must be in an action for thus advancing it, and not in an action on the original indebtedness.
The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
In this case, the conclusion of law drawn from the facts is incorrect. The plaintiff declares for a sum due on the 20th December, 1854, and the defendant pleads, by way of offset, a payment in June, 1855.
It appears that the defendant paid the sum of one hundred and sixty dollars, upon his account, to the witness, Hanford, who was authorized to receive money for the firm of which he was a clerk, and that the amount was not credited upon the books, but by a ticket, which was the usual way, when such sums were paid by "persons who were not regular depositors or customers; that said Hanford, though authorized to receive, had no control over the money or banking business of the firm.
This sum having been received in the usual way of business, and having gone into the drawer, was in law a legal payment; the possession was changed, and the defendant lost all control over it.
The agreement to lend the amount to the witness, Hanford, was not obligatory upon the firm, as they might have refused to allow him to draw the money, and the subsequent reply of the defendant, when interrogated, as to the fact of the loan, “ that he would make it all right with the witness," does not change the character of the transaction. As to the ultimate liability of the defendant for the amount advanced to Hanford, we express no opinion; but we are clear upon the point that the plaintiff should have declared for the hundred and thirty dollars, contracted December, 1854, and also for the amount advanced to Hanford at the instance of the defendant.
It is contended that there is no statement in the record. The order [285]of the Court helow overruling the motion for a new trial, purports to have been made upon the statement on file, which contains the above facts.
Judgment reversed.
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