Marks v. Bodie Bank

BELCHER, C. C. This is an action to recover the sum of fifteen hundred and fifty dollars, besides interest thereon, which it is alleged the defendant had collected and now holds for the use of the plaintiff.

From the findings it appears that the plaintiff was the owner of three promissory notes made by one Jonas Cohn, on which there was due for principal the sum of fifteen hundred and fifty dollars, and that on the twelfth day of May, 1880, he assigned the notes to the defendant for collection; “the defendant then and there agreeing with the plain- . tiff to use its best efforts to collect the same, and, when collected, to pay the proceeds thereof over to the plaintiff, deducting therefrom the necessary costs, commissions, and [584]expenses incident to such collection”; that the defendant at once commenced an action to recover the amount due for principal and interest on the notes, and the further sum of eight hundred and four dollars and sixty-one cents, which Cohn then owed to defendant; that judgment was obtained for the full amount claimed, on which execution was issued; that under the execution there was sold a large lot of clothing, merchandise, and book accounts, the property of Cohn, which was bid in by the defendant for a sum sufficient to satisfy the execution and pay the costs of sale. The court further found that the defendant did not purchase the goods, merchandise, and book accounts at the sheriff’s sale for its own sole benefit, but, there being no bidders who were willing to pay therefor a sum sufficient to satisfy the execution, the defendant bid the same in for the use and benefit of the plaintiff and defendant, in order to prevent a sacrifice of the goods and to secure the demands of both parties; that for want of a purchaser willing to pay a fair price for the goods, or sufficient to satisfy the plaintiff’s and defendant’s demands in full, only a small portion thereof had been sold by defendant, and that after applying the proceeds of the sales to the costs and expenses of the suit and sale, and the expenses of taking care of and disposing of the goods, a portion of the defendant’s demand still remained due and unpaid. It was further found as a conclusion that the defendant had no money in its possession belonging to the plaintiff, and was consequently entitled to have judgment entered in his favor. The appeal is by the plaintiff from the judgment and an order denying his motion for a new trial.

1. It was claimed for the plaintiff at the trial, and is claimed here, that the defendant had no authority to bid in the goods on his account or for his benefit, and that, having bid them in in its own name for a sum sufficient to satisfy the execution, it at once became liable to pay him the amount due on his notes for principal and interest. We do not think this claim can be maintained. The notes were turned over to the defendant for collection, and it became its duty to exercise care and diligence in trying to make the full amount of money due on them. The plaintiff estimated the value of the goods seized at considerably more than enough to satisfy the execution. When they were offered for sale, therefore,