
    Dennis Nagle, Appellant, v. John Richards and Fred G. Morrison, Respondents.
    Fourth Department,
    July 6, 1909.
    Appepl from nonsuit — presumption as to conflicting evidence—principal and agent — payment of orders drawn on principal — liability of principal.
    Where on an appeal from a nonsuit the evidence is conflicting, the plaintiff is entitled to the version most favorable to himself.
    Where defendants, copartners, engaged in cutting timbers, sublet the work to one M., who in turn sublet to one H., and agreed with the latter that they would pay the men employed by him, and he drew orders in favor of the laborers on one of the defendants, which were cashed by the plaintiff on the request'd one defendant, and on his promise to pay, the defendants, while not liable on the order's in that there was no written promise to accept them as required by section 223 of the negotiable Instruments Law, are liable nevertheless, for the plaintiff paid the money at the request and for the benefit of the defendants so as to become their agent.
    Appeal by the plaintiff, Dennis Nagle, from a judgment of the Supreme Court in favor of the defendants for costs, entered in the office of the clerk of the county of Herkimer on the 10th day of April, 1908, after the verdict of a jury in favor of the plaintiff for forty dollars directed by the court to be set off against an equal amount of said costs, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William S. Rhodes, for the appellant.
    
      Charles Bell, for the respondents.
   Spring, J.:

In the latter part of the year 1905 the defendants in this action were copartners engaged in cutting and removing timber from a certain tract of land in Herkimer county. This work was let by them to one Hang, who in turn sub-let part of it to one James Huckelbone. The plaintiff at this time was the proprietor of a hotel at a place called Salisbury in the vicinity of the lumber camp, and one Cytle was carrying on a store at the same place.

There was an agreement between the defendants and Huckelbone that they were to pay the men employed on the timber job. The method of payment was for Huckelbone to draw orders on the defendant Morrison to the men from time to time. Some of these orders were cashed by the plaintiff and some by Oytle on the indorsement of the respective payees, and they were paid by the defendants. In the fall of 1905, while the work was in progress, the defendant Richards, after cashing a bunch of these orders, requested the plaintiff to cash the orders of Huckelbone for the men as they were presented. The plaintiff said he did not have the money to do this, and Richards told him to ask Oytle to cash them. Oytle and the plaintiff were near the timber camp, while the defendants were engaged in business some distance farther away ; and the arrangement was made as a convenience for the defendants. The plaintiff delivered the request from Richards to Oytle, and afterwards both he and the plaintiff in pursuance of said agreement cashed orders made by Huckelbone to the laborers on the job and which were indorsed by these payees. Each of these orders was for a small sum, representing evidently pay for services for a short period, although aggregating a considerable amount.

Some time after the orders were presented to the defendant Morrison by the plaintiff and Oytle, the amount of them computed, and Morrison promised to pay in a short time, but subsequently repudiated them. Oytle assigned his cause of action to the plaintiff.

The cause of action is based upon the orders and also upon a store account incurred by Huckelbone, which was made on the faith and credit of the defendants. The complaint, while founded on the orders, alleges: “That between the first day of November, 1905, and the first day of January, 1906, at the special instance and request of defendants herein, he (the plaintiff) cashed and advanced the money on written orders drawn by one James Huckelbone upon these defendants to the amount and value of One hundred five dollars and fifty-six cents ($105.56).”

The trial court dismissed the complaint as to the orders, but sub- , mitted to the jury the question of the defendants’ liability for the store account, and there was a verdict for the plaintiff, although for a much less sum than claimed.

There was conflict in the testimony, but the plaintiff is entitled to the version most favorable to himself, for he was nonsuited as to the claim now before us for review.

If the action is to be considered as founded entirely upon these orders no case was made out. There was no written promise to accept them (¡Neg. Inst. Law [Laws of 1897, chap. 612], § 223), and they were not accepted in writing after they were drawn and presented.

We think, however, the defendants are liable upon another ground. Oytle and the plaintiff were not interested in paying these laborers’ wages, except indirectly. Honey in the hands of these men might be spent at the hotel of the plaintiff or at the store of .Cytle. The fact appears, however, that the men were paid at the request of the defendants. They had agreed to pay the men at work in clearing this timber. It was inconvenient for them to send the money to Huckelbone to carry out this agreement. For their own benefit and to facilitate the carrying on of their business they asked Cytle and the plaintiff to make these payments. The orders of Huckelbone, their man in charge for this purpose, are of no significance, except in determining the amount to be paid to each man. When paid the order was the receipt — the evidence of the amount paid. The situation is no different than if Huckelbone had made out a weekly statement of the amount due each of the men, delivered it to Oytle or the plaintiff, and each man paid had written his name opposite the sum due him as evidence of payment. The point is, Cytle and the plaintiff were acting for the defendants in making these payments. They were the representatives, the agents on the ground of the defendants, and their authority was to pay these men the sums which Huckelbone determined was due them from time to time as pay day came. The plaintiff is seeking to be reimbursed for the moneys paid out at the distinct request and for the benefit of the defendants.

The proof is not very full or satisfactory that all these sums were paid for wages. The case was taken from the jury and the plaintiff was much hampered in presenting the evidence. I think, however, there was sufficient to submit to the jury.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  