
    THE COMMERCIAL BANK OF PENNSYLVANIA, Respondent, v. ISAAC HEILBRONNER, Appellant.
    
      Factor—Right of to sell claim against vendee of his principal's goods, for purchase price thereof-—National hank—Right of to purchase such claim— Another action pending—when not defense.
    
    A factor who has sold goods of his principal, guaranteed the sale, and made advances thereon, has a cause of action against the vendee, which he may sell and assign.
    A national bank may purchase such a claim, if the purchase is for hanking purposes; the presumption being that the bank, in making the purchase used its power for a lawful purpose, which presumption is not overcome by merely showing that the former owner of the claim transferred it.
    An action pending between the principal as plaintiff and his factor, the vendee of the factor, and the parties to whom the factor had assigned his claim against his vendee, as defendants, the complaint in which alleged a sale by the defendant factor to the defendant vendee of divers goods of the plaintiff, at low prices; that said prices had not been paid ; that the parties defendant, to whom the factor had assigned his claim against the defendant vendee, took the transfer, with full notice of plaintiff’s rights as alleged in the complaint, and prayed that plaintiff be adjudged entitled to receive the sum of money due from the defendant vendee, for the goods alleged in the complaint to have been sold to him; that the transferee of the factor’s claim against the defendant vendee be restrained from collecting or receiving, and defendant vendee be restrained from paying over or delivering any part of the proceeds of such goods,—is no defense to an action brought by the transferee of the factor against such vendee for the price of the goods.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    
      Decided December 7, 1885.
    Appeal by defendant from judgment entered on verdict of jury, directed by the court in favor of plaintiff.
    The action was brought for the purchase price of goods sold and delivered to defendant by a firm of Vanuxem, Wharton & Co., on a credit of sixty days. Before the sixty days had expired, Vanuxem, Wharton & Co., sold their right of action to the plaintiff, which was a national bank. The goods were sold by the firm named, as factor of one Taft and one Hubbell, guaranteeing that “alisales should be good.” The firm had advanced to their principals about sixty per cent, of the value of their consignments, which included the goods in question.
    It was proved that Taft had brought ^an action against the plaintiff herein, the defendant herein, the members of the firm of Vanuxem, Wharton & Co., and the Peconic Manufacturing Co., the complaint in which alleged that Vanuxem, Wharton & Co., sold and delivered to Heilbronner divers goods of the plaintiff at divers prices, which prices had not been paid by Heilbronner to Vanuxem, Wharton & Co., the plaintiff or otherwise ; that Vanuxem, Wharton & Co. executed an assignment of the claims against Heilbronner for the prices of said goods; that plaintiff herein took said assignment with full notice “of the plaintiff’s rights in and to all of the said goods, and in and to the said moneys due, or to become due, from the said Heilbronner, for the sale and deliveries to him as aforesaid, and not for full value or in good faith, and with notice of the fact that said Vanuxem, Wharton & Co. were the plaintiff’s factors with respect to the goods so sold to said Heilbronner, and had been fully paid for all their advances and charges by plaintiff, upon his goods consigned to them, and well knowing that the said Vanuxem, Wharton & Co. were insolvent, and indebted, as aforesaid, to the plaintiff and prayed that the plaintiff be adjudged entitled to receive the sum of money due from Heilbronner for the goods alleged to have been sold to them ; that the plaintiff in this action be restrained from collecting or receiving, and that said Heilbronner be restrained from paying over or delivering any part of the proceeds of said goods. It did not appear either that an injunction had been issued or judgment entered in that action. .
    
      Jacob Fromme, attorney, and of counsel for appellant, argued:
    I. The motion to dismiss the complaint after the plaintiff rested should have been granted. The plaintiff did not prove that its assignors were the owners of the indebtedness, as alleged in the complaint. On the contrary, it showed that its assignors were merely the agents to sell on commission. The fact that, as such agents, they matle advances .to the owner, did not alter their relations, unless it was shown that by agreement after the advances were made they then became the owners, which was not the fact in this case, nor was it attempted to be proven. After the credit expired, although not the owners, but merely the agents, if not prohibited by the owners, Vanuxem, Wharton & Co. might have maintained an action in their own name (§ 449, Code), but that did not authorize them to sell the claim before the credit expired (Warner v. Martin, 11 How. [U. S.] 209 ; §§ 112, 113, Story on Agency, [8th ed.] 130, 131).
    
      Buying el aims was not within the power of the plaintiff. The bank, therefore, exceeded its power, and hence cannot recover (Seneca County Bank v. Lamb, 26 Barb. 598; North River Ins. Co. v. Lawrence, 3 Wend. 482 ; Life & Fire Ins. Co. v. Merchants’ Fire Ins. Co., 7 Ib. 31; Bank of California v. Collins, 7 Hun, 336 ; U. S. R. S. § 5136, subd. 7, 999).' The case of Gold Mining Co. v. Rocky Mountain Bank, 96 U. S. 640, is not analogous.
    II. The defense of another action pending is a good one. The defendant set up in that action, together with the allegation in the complaint, all- such necessary facts against this plaintiff as would sustain an action for an interpleader.—1. That two persons make claim against him (Heilbronner) for the same thing. 2. That he has no beneficial interest in the thing (debt) claimed. 3. That he cannot determine, without hazard to himself, to which of the parties the debt belongs. 4. That it appears that the action at bar was brought after the supreme court action, where all interests of the parties can be adjusted without damage to any one (Dorn v. Fox, 61 N. Y. 264), and asks for affirmative relief against the plaintiff in this action, which would make this defendant the plaintiff against the plaintiff here, in the same manner as if he had brought an independent action (§ 521, Code). The defendant could not in this action come in o:i motion and ask to be allowed to pay the amount into court, and to substitute Taft in his place under § 820 of the Code, because he (defendant) disputed a portion of it, to wit: his offset of $81.99. (New England Ins. Co. v. Keller, 20 Week. Dig. 482).
    III. In no aspect of the case could the court direct a verdict for the plaintiff. By the testimony of Taft, it appeared that he claimed the goods and account before the credit expired ; also that he revoked the agency of Vanuxem, Wharton & Co., and brought suit against them before the credit expired ; how, then, could the direction be made in favor of the plaintiff? The plaintiff’s assignors could not even maintain the action, because their authority was revoked—were even sued before the credit expired (Sargent v. Morris, 3 Barn. & Ald. 277). In no aspect of the case could Vanuxem, Wharton & Co., plaintiff’s assignors, be regarded as the owners of the claim (Beach v. Forsyth, 14 Barb. [469], 503 ; Fahnestock v. Bailey, 3 Metcalf [Ky.] 480).
    
      Boot & Strong, attorneys, and Theron G. Strong, of counsel for respondent, argued:
    I. The motion to dismiss the complaint, on the ground that the bank had no authority to buy the claim in question from Vanuxem, Wharton & Co., was properly denied (Subd. 7, § 5136, U. S. R. S.; Gold Mining Co. v. Rocky Mt. Bank, 96 U. S. 640).
    II. Vanuxem, Wharton & Co., having made advances on the goods of from 60 to 75 per cent, of their value," and being factors under a del credere commission, had a lien to the extent of their advances, and were the proper parties to sue. a. Whatever rights Vanuxem, Wharton & Co. had, passed to the bank by the transfer, and-the bank could therefore maintain an action if Vanuxem, Wharton & Co. could ; and that they could there can be no question (Ladd v. Arkell, 37 Sup. Ct. 35). b. The utmost that could be claimed would be that the bank would be obliged to account to Taft for all beyond Vanuxem, Wharton & Co.’s advances. •
    III. The pendency of the action by Taft constitutes no defense, a. The mere fact that a prior suit is brought by another person against the defendant for the same thing is no defense. If the defendant admits that the amount claimed is due, he can protect himself by interpleader and payment into court, b. But the facts in no respect make applicable the plea of another action pending (Dawley v. Brown, 79 N. Y. 398).
   By the Court.—Sedgwick, Ch. J.

The first objection to plaintiff’s recovery is that Vanuxem, Wharton & Co. were not the owners of the goods sold to the defendant. It is apparent that as factors of Taft & Hubbell, they had a cause of action against the defendant, which in its nature was capable of transfer to plaintiff. As the firm had advanced and also guaranteed that purchasers from them would pay, it was no infringement of the principal’s right to turn the claim into money, as was done. Taft & Hubbell, being indebted for advances, could not have successfully brought an action against the defendant.

Another objection was, that plaintiff was not the owner of the claim, because, being a national bank, it had no right or authority to buy claims of this kind. By sub-division 1, of section 5136, U. S. R. S., it had “all such incidental power as shah be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt.” It had all the faculties necessary to the purchase of any kind of property. Its bank was in Pennsylvania. It had authority to buy this claim if the purchase was for any banking purpose ; for instance, to place money in New York, or elsewhere, where the defendant lived. Under such a defense as the present, the presumptions are that the bank used its power for a lawful purpose (Farmers’ Loan & Trust Co. v. Curtis, 1 N. Y. 466). The unauthorized purpose is not proved by merely showing that the former owner of the claim transferred it. That shows nothing as to the purpose of the plaintiff in buying, and does not overcome the presumption referred to. This objection should not be sustained.

The action, the pendency of which was set up as a defense, was not between the same parties or for the same cause. The present claim was merely incidental to the issues of that action.

Judgment affirmed, with costs.

Van Vorst and Freedman, JJ., concurred.  