
    Isaac Merritt, Plaintiff and Respondent, v. John A. Millard, Defendant and Appellant.
    1. An attorney or agent, who has received from his principal, as a mere messenger or carrier, money to be delivered to a third person, although it be paid in performance of an agreement previously made between the principal and such third person, cannot set up any illegality in such agreement, as a defense to an action brought by the latter tó recover it as money paid to his use.
    2. A mere agency of such defendant in making the original agreement, does not affect his liability. It is not his mere ignorance of such illegality, but the absence of any legal connection between the new promise of the defendant to deliver such money as directed, and the original contract, which precludes him from setting up such a defense.
    (Before Robertson, White and Monell, J. J.)
    Heard, November 11, 1862;
    decided, February 28, 1863.
    This was an appeal by the defendant, from a judgment in favor of the plaintiff, entered on the report of John H. White, Esq., Beferee, to whom the issues in the cause were referred.
    The action was brought to recover the sum of five hundred dollars, paid to the defendant by one Jared Brewster, for the plaintiff’s use. The answer of the defendant took issue on .the material allegations of the complaint j and also set up four other defenses, all of which were adjudged bad on demurrer. That decision is reported in 5 Bosw., 645.
    The remaining issues in the cause were referred to John H. White, Esq.
    The testimony upon the trial showed that the plaintiff held a judgment, which was a lien upon the undivided half of certain lands in Troy, and that one Jared Brewster held a lien on the other undivided half of the same premises. These liens were both subsequent to the lien of a mortgage upon the premises, which was held by another person; and upon a foreclosure of the mortgage, and at the time of the premises being offered for sale under it, the attorney of Merritt, the plaintiff in the present action, was present among others, and also Jared Brewster and John A. Millard, the present defendant, who was Brewster’s attorney. The defendant asked Brewster, his client, if he would pay five hundred dollars, if Merritt, the present plaintiff, would not bid; he said he would.
    The defendant then, as agent for Brewster, agreed with Merritt’s attorney that the latter should forbear to bid, and that Brewster should pay the latter therefor that sum Accordingly Merritt’s attorney made no bid, and Brewster bid off the property. Brewster subsequently asked the defendant if he would pay the plaintiff’s attorney, to which he replied he would. Brewster then said he would pay him (defendant) and sent him a check tor four hundred and forty-seven dollars, which, with a small sum due to Brewster from the defendant, was enough to pay the plaintiff. The estimated cash, value of one-half the surplus of the proceeds of the sale, above the mortgage, was five hundred dollars. The defendant, on one occasion, had admitted that he had got the money from Brewster for the plaintiff. The defendant, being examined as a witness, denied that the money was sent him to pay the plaintiff, or for plaintiff’s use, and testified that the money was paid to him in consideration that he undertook to pay the plaintiff’s attorney the five hundred dollars.
    The defendant moved for a nonsuit, on two grounds. 1st. That the money was not paid to the defendant for the plaintiff’s use. 2d. That the money was paid to him for his own use, in fulfillment of a contract made with him. This motion was denied.
    The Referee, by his report, found that Jared Brewster paid to the defendant five hundred dollars to the plaintiff’s use, which the defendant promised to pay to the plaintiff; and, in such report, the Referee referred to an opinion annexed for the reasons of such finding. The Referee also adjudged that the defendant was indebted to the plaintiff in that sum, with interest.
    The Referee, in his opinion, argued that he could, not consider the illegality of the original contract, because the defendant had not set it up affirmatively in his answer.
    The defendant filed exceptions to the report, and also to various statements in the opinion, and he appealed from the judgment.
    
      J. A. Millard, defendant, appellant; —
    Insisted that the contract between plaintiff and Jared Brewster was against public policy, illegal and void; not voidable, but void; and could not be enforced against either party to it, nor against any person connected therewith, nor against any person acting thereon, with notice or knowledge of the illegality of the contract between the contracting parties. (Citing Farmer v. Russell, 1 Bos. & P., 296; Thalimer v. Brinckerhoff, 20 Johns., 397; and this case, 5 Bosw., 645; De Groot v. Van Duzer, 20 Wend., 397; Steers v. Lashley, 6 T. R., 61.)
    
      Robert Christie, Jr., for plaintiff, respondent; —
    Cited, Tenant v. Elliott, (1 Bos. & P., 3;) Owen v. Davis, (1 Bailey, 315.)
   By the Court—Robertson, J.

The only question upon the Beferee’s report is whether, upon the facts which he was entitled to find, and those he has found, his judgment can be sustained. The opinion annexed to his report is only referred to therein for the reasons for his finding the single fact contained in his report, and they seem amply sufficient to sustain it. The resolution not to consider the question of the illegality of such contract contained in such opinion, and the reasons given therefor, are immaterial, as they form no part of the report. If, under the issues and evidence, he was not bound to take it into consideration, it is immaterial whether his reasons for refusing it be right or wrong. It certainly formed no part of the conclusions of law in the case, that the pleadings did not warrant the inquiry into such illegality. Without considering that question, therefore, I shall examine whether the evidence shows the receipt by the defendant of five hundred dollars for the plaintiff’s use, which he was bound to pay over.

The defendant admits that he received the money, and agreed to pay a like sum; he claims that the latter was a personal agreement, and the former was the receipt of money to reimburse him. He does not explain why he received the money and retained it, before he paid the same sum, nor why his scruples as to the contract only arose after he had induced the plaintiff to abstain from bidding. His principal seems to have believed that it was long since jjaid over in fulfillment of his contract. Even if a critical analysis of the testimony of the defendant warranted such a construction of it, and it was not contradicted, the Eeferee was justified in rejecting what seemed to be a mere device, and finding that the defendant received the money to pay it over.

Without questioning the over refinement of reasoning which makes an agreement not to attempt to buy certain specific property void, as against public policy, although a man may make a valid agreement not to deal in articles of a certain kind, within fixed limits, and assuming that a party who has a lien on, but no means to buy property sold for a prior lien, cannot sell his right to bid to protect 1 himself; the mere messenger or carrier of the price, it seems to me, cannot set up such a defense. It is true the defendant, as agent, made the original agreement, but he was no party to it, derived no benefit and suffered no loss . from it, as in the case of Farmer v. Russell, (1 Bos. & P., 296.) It formed no part of that agreement that Brewster should pay the defendant the five hundred dollars for the plaintiff. The promise, by the defendant, to pay, arose from the subsequent receipt of the money for the purpose. The Eeferee seems tq have inferred from the language of the Court, when this case was formerly before it, (5 Bosw., 645,) that the decision was put on the ground that the defendant had no notice of the illegality of the agreement. This appears to have been said simply to show the entire want of connection, by the defendant, with the original transaction. (See p. 650.) The cases of Armstrong v. Toler, (11 Wheat., 258,) and Hodgson v. Temple, (5 Taunt., 181,) cited to support the opinion, were decided without reference to knowledge, and were put entirely upon want of legal connection. I am satisfied that the former decision controls the facts as they now stand.

The judgment must be affirmed, with costs.  