
    Alfred Roberts vs. John W. Noyes.
    Cumberland.
    Opinion January 2, 1885.
    
      Bailments.
    
    
      A bailee is not permitted to dispute the title of his bailor, but he may show that the bailor has assigned his title to another, since the property was entrusted to him. If legally assigned, and the bailee has notice of the fact, the bailee must account to the assignee. The rule that a bailee should not attorn to a stranger, does not apply; the assignee is not a stranger.
    On report from the superior court.
    Assumpsit. The opinion states the facts.
    
      M. JP. Frank, for the plaintiff,
    cited: Vermont Mining Go. v. Windham Go. Bank, 44 Vt. 489 ; McLouth v. Bathbone, 19 Ohio, 21; N. H. E. S., c. 130, § 4; Hastings r. Gutter, 24 N. H. 481; Bobbins v. Bacon, 3 Maine, 346; Legro v. Staples, 16 Maine, 252; Wheeler v. Fvans, 26 Maine, 133; Adams v. Bobinson, 1 Pick. 461; Bourne v. Oabot, 3 Met. 305; Mete. Contracts, 170.
    
      Motley and Briggs, for the defendant.
    The defendant was the agent of Mrs. Pounds. He was bound to pay over the funds to her, and had no right to withhold the same from her by the mere receipt of the notices. Story, Agency, (8th ed.) c. 7, § 217; Story, Bailments, § § 102, 103, 110; 2 Story, Eq. Jur. § § 816, 817.
    The assignment ante-dates the letter of attorney five months. Eoberts does not appear in the letter of attorney, as assignee of Mrs. Rounds’ interest. Her interest at the time of the assignment, was real estate. If it was a valid assignment, then the plaintiff was the owner and he should have signed the letter of .attorney. The conduct of the parties shows that neither the plaintiff nor Mrs. Rounds considered the assignment valid.
    Whether or not from the notices received, Mrs. Rounds had any color of right to the money, was a matter for Noyes, as the agent, to decide. And if she had, in his judgment, such a color of right, this action cannot be maintained. 3 Add. Contracts, (3 Am. ed.) § 1413; 1 Parsons, Contracts, (5th ed.) 79, 80.
   Peters, C. J.

The evidence is reported, upon which we are to render judgment according to the law and fact. The facts, stated in the order of occurrence, we have no difficulty in finding to be these: The plaintiff’s wife and a Mrs. Rounds, sisters, were, with other heirs, owners of a farm in New Hampshire, which descended to them from their father, deceased. On the 19th of October, 1878, Mrs. Rounds sold and assigned her interest in the estate, making an informal deed thereof, to the plaintiff. On March 10, 1879, the heirs, their wives and husbands, and the widow joined in a power of attorney to the defendant to sell the property. On July 11, 1879, the plaintiff wrote to the defendant, informing him in general terms of the assignment, and requiring that Mrs. Rounds’ share of the proceeds of sale be paid to him. On July 21, 1879, the defendant wrote to the plaintiff, acknowledging the receipt of the plaintiff’s letter, and stating, among other things, that he would like to have Mrs. Rounds write him directing the money to be paid to the plaintiff, adding, "I will then do so.” He enclosed a receipt for Mrs. Rounds and the plaintiff to sign. The plaintiff procured an execution of“the receipt, also an order from Mrs. Rounds as requested, and sent them to the defendant on July 25, 1879. The defendant, on July 30, 1879, acknowledged by letter receiving plaintiff’s last letter, and said all were paid, " except Mrs. Rounds, which I will send the first of next week. ” On August 6, 1879, the plaintiff wrote warning the defendant not to pay to Mrs. Rounds. In defiance of all this evidence of assignment and transfer, the defendant, on August 6, 1879, paid the money to Mrs. Rounds.

The defendant, as a witness, undertakes to convey the impression that he had not received the acquittance, sent by the plaintiff, when he paid the money to Mrs. Rounds. It cannot be so. It was inclosed in the plaintiff’s letter of the’25th of July, That letter states that it is inclosed therein. The defendant received that letter. In his reply he does not say that the acquittance was missing. On the contrary, he says, " I have received the letter of the 25th instant, inclosing Mrs. Rounds’ order, &c. ” What did the "&c. ” refer to if not the receipt? Why did he say he would send that share the next week ? He produces the receipt at the trial. How and where did he get it? It must have been by some letter, and no other letter than those named is produced or suggested. The " lame and impotent ” excuse is apparent indeed.

Upon these facts,- it is contended that the defendant was not under obligation to account to the plaintiff as an assignee of the claim.

In the first place, it is said that the papers are not appropriate to constitute an assignment. We think otherwise. And there is a good deal of ground for the position that the defendant did not even act in behalf of Mrs. Rounds, she being a nominal and the plaintiff being the real party in selling the farm.

The defendant invokes the rule of law, that an agent in possession of his principal’s property, is not permitted to dispute the principal’s title thereto; that he cannot be converted into a trustee for a third person by a mere notice of his claim; that he cannot affect the principal’s rights by an attornment to a stranger; and that an action of money had and received cannot lie in such case by a third party. All of which is true but misapplied. The plaintiff does not set up an independent and hostile claim as a stranger or third party. He claims under Mrs. Rounds, and not adversely to her original Tight. He claims that her right has become his; that thereby her trustee has become his trustee; and that the privity between her and her agent has been transferred to him. The plaintiff could not dispute Mrs. Rounds’ original title, but he can show that it was assigned to him. It is clear from all the authorities that while a bailee cannot dispute the title of his employer, he can show that since the bailment it has been assigned to another. The allegiance of the vassal was to defend the castle of his lord against outside .foes, and not against itself. The present is only the common case of the assignment of a fund or claim in the hands of the agent or attorney of the assignor. A question arising between the assignor and assignee, each making a demand upon the trustee or stakeholder, the defendant could have saved himself of all risk, and from costs, by sending the contestants into equity upon a suit of interpleader. Having espoused the side of the assignor he took the consequences attached. No sufficient defense has been established against the claim of the assignee. Marvin v. Ellwood, 11 Paige, 365 ; Smith v. Hammond, 6 Sim. 10; 3 Pom. Eq. Jur. § 1327, and cases in note; 2 Stor. Eq. Jur. § 817; Exchange Bank v. McLoon, 73 Maine, 498.

Defendant defaulted.

Walton, Danforth, Virgin, Libbey and Haskell, JJ., concurred.  