
    
      YOUNG vs. M'LAUGHLIN & AL.
    
    Appeal from the court of first district.
    ifA.B.andC. receive a note, pavableinTen-nelsee, and promisetosend the proceeds theytransmiUt n°ssee"and be. bftin'oi'ner" givehi-v,anor-he d<ro ceedsfrom
    On tbe 3d of April, 1818, the plaintiff and ap* v > - pellee delivered into the hands of theappel-lants, a promissory note, subscribed by Samuel Vance & Co. in favor of Young and Urquhart, Jate(1 New-York, 5th July, 1817, and payable twelve months after date: in the receipt, which they gave to the appellee, they say, “ that when collected, it is to be remitted to John Urquhart of New-York.” It appears that the subscribers of the note, lived in the state of Tennessee, and that it. was understood between the parties that the appellants were to send it there, for collection. On the S8d of April, same month, they inclosed it to John Í*. Irwin in a letter, which makes part of the evidence produced by them. John I\ Irwin is presumed tó have obtained payment of the note ; but the appellee, being without any account of it, called upon the appellants, and received from them an order on John P. Irwin for the same. A few days, however, after having received , that order, he brought (he present suit, demanding payment of the note directly of them.
    There seems to be but one question in this case : Did the plaintiff authorise the defendants, to send the note to John P. Irwin to collect it in Tennessee, and remit the same from thence to Urquhart, in New-York? If so, he certainly cannot call upon them here, for the amount. Let us see how stands the jiroof with respect to that point: in the first place, it is admitted that the note was payable in Tennessee; so that without any recommendation to, that effect, it was, of course, to be sent there. Two of the partners of the house of the defendants here, have another mercantile house in the country, where the note was tó be paid ; it is reasonable to suppose both parties to have understood, that it was to be sent to them. The amount, when i ¶ - i collected,was to be remitted toNew-York. Was. it first 'to be sent here, and then from here to New-York? That is hardly to be presumed. The natural course of this transaction was certainly that the defendants were to despatch the note to the house of their associates in Tennessee, with instructions to remit the proceeds directly to New-York. This, if there was no positive testimony on that point, would offer itself as the probable understanding of the parties ; but there is positive evidence that the plaintiff, fen seeing that such had been the 'course pursued by the defendants, declared that it was conformable to the instructions which he had given them. To that must be added, as a confirmation of that testimony, bis own acceptance of an order on Jno. P. Irwin, for the proceeds of the note, which, as it makes part of the evidence produced on his side, was, it must be supposed, in his hands. We are, upon the whole, satisfied that Jno. P. Irwin was made, by the direction of the plaintiff, his agent on the spot where the note w as to be collected, and that the plaintiff must look to him for an account of it.
    Enough having been found in the merits 'of the case to pronounce in favor of the appellants, no notice has been taken of their bills of exceptions.
    
      Eustis for the plaintiff. Preston for the defendants.
    It is, therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and that judgment be entered for the appellants with costs, 
      reservingto the plaintiff his recourse against the house of J. P. Irwin, in Tennessee, as if no suit had been brought against Irwin, M‘Laughlin Co.
    
    
      
       This case was determined in January last, but was continued on a motion for a rehearing, till this term, when the judgment waa amended by the addition of the words in italicks.
    
     