
    Coffin and Others v. Henshaw.
    
      A. sent money to a bank in the form of a draft, with directions to place it to his credit and await his further orders. The banking firm gaye a receipt for the same. Afterwards A. agreed with B. that the draft should be' transferred to B’s credit; but the firm was not privy to the agreement, nor did A. notify them of it, or make any order in pursuance of it. B., however, without authority from A., wrote to the firm ordering them to place the draft to his credit, and was answered that they had done so. Afterwards, A. demanded the money, and the firm refusing to pay it, he brought suit. Held, that the firm was liable to A. for the amount of the draft.
    
      APPEAL from the Wayne Circuit Court.
    
      Monday, May 31.
   Worden, J.

This was an action by the appellee against the appellant and others, composing the firm of Cooper, Lippencott, Coffin, Sf Co., for money had and received by the defendants below, for the use of the plaintiff below.

Process was served on Coffin, and a suggestion of not found was entered as to the others. Coffin, only, appeared to the action, and judgment was rendered against him only.

The complaint alleges that on the 11th of December, 1854, the defendants, by their receipt in writing, acknowledged to one John Peele, by the name of J. Peele, tjie agent of the plaintiff, the receipt of a draft on the Merchants Bank, of New York, calling for 597 dollars, 29 cents, payable to one Cox, and by him indorsed to the plaintiff, to whose credit it was placed by the defendant, as so much money had and received to the plaintiff’s use; that the defendants received said sum of money from said bank for the use of the. plaintiff, and that the same was duly demanded of the defendants before the commencement of this suit, and payment refused.

The receipt above mentioned is set out as follows, viz.:

“Phil, Dec. 11,1854.
Mr. J. Peele: Yours of Nov. 31 last, came to hand in due time, with the draft enclosed on Merchants Bank of New York, calling for 597' dollars 29 cents, payable to JR. W. Cox, with instructions to place the same to the credit of Nathcm Henshaw, of Indiana, which amount has been placed to his order, &c. Yours truly, [Signed,]
Cooper, Lippencott, Coffin, Sf Co.”

The defendant Coffin, for answer, denied all the matters set up in the complaint.

The cause was tried by the Court, which found for the plaintiff the sum of 522 dollars 15 cents. Motion for new trial overruled, and judgment on the finding. Bill of exceptions filed setting out the evidence.

The reasons filed for a new trial were—

“1. The finding for the plaintiff is contrary to law.
“ 2. The said finding is against the evidence and not sustained by it.”

It appears from the testimony, that Henshaw was entitled to about 600 dollars in the state of North Carolina, as the guardian of one Amos R. Peele, and that the above-named John Peele, as agent of said Amos R., and by the direction of Henshaw, as acting guardian of said Amos R., with said money procured the draft in question for 597 dollars 29 cents, payable to one R. H Cox, and by him indorsed to the said firm of Cooper, Lippencott, Coffin, 4* Co.; and that on the 31st of November, 1854, the said John Peele transmitted the said draft to the said firm, writing them that he sent the draft by the instructions of said Henshaw, with directions to place the amount thereof to his credit, and wait his further orders, and that he received from them the receipt above set out.

In April, 1855, Henshaw gave an order on defendants to one Joel Parker, for the amount of said draft, less 100 dollars, which had been arranged in some other way, payment of which order was refused by defendants.

The execution of the above receipt by defendants was proven, and the names of the firm admitted.

This is the substance of the testimony for the plaintiff.

On the other hand, it was proven by one Nathan Stanton, that in the spring or fore part of the summer of 1854, Henshaw came to him, Stanton, and stated that he had 600 dollars in North Carolina, as guardian of Amos R. Peele, and that he wanted to use some of the money in the purchase of land, and that if he, Stanton, would agree to pay him 300 dollars when the man came of whom he expected to buy the land, he, Henshaw, would let him, Stanton, have a check for 600 dollars from North: Carolina on some eastern bank.

The arrangement was accordingly made. The other three hundred dollars was to be paid at some future time, which was not definitely agreed upon. Stanton then gave Henshaw the name of the firm of Cooper, Lippencott, Coffin, 4* Co., as the persons for his agent to send the check to, and directed him to have it made payable to them. He then wrote said firm stating that they would receive a check for 600 dollars from North Carolina from N. Henshaxv, which was to be placed to his, Stcmton's, credit.

' The man of whom Henshaw expected to purchase land did riot come, and Stanton was not pressed for the 300 dollars (which has never been paid), but Henshaw demanded it about the time it was to have been paid, and several times afterwards. In the winter afterwards, Stcmton paid Henshaw 100 dollars on the check and gave him claims to a considerable amount on persons in his neighborhood, requesting him to make what collections he could and retain it on the check. Some time in the latter part of the summer or first of the fall of 1854, Stanton received information from said firm that they had received said check for 600 dollars and placed it to bis credit. That he was credited by said firm (to whom he appears to have been indebted), with the said sum of 600 dollars in the latter part of the summer or fore part of the fall of 1854. It was the understanding of Stanton, that the check spoken of, when received by said firm, was to be at his disposal, and that he was to become paymaster to Henshaw for the same. The following receipt was given by Henshaw to Stanton on the payment of the 100 dollars before spoken of, viz.:

“ Received of Nathan Stanton one hundred dollars to his credit on a check sent by my direction to Cooper, Lippeneott, Coffin, Sf Go., of Philadelphia, 1st mo. 15th, 1855.
Nathan Henshaw."

Henshaw never authorized Stanton to write to said' firm to place said check or draft to his Stanton's credit, nor does it appear that ever Henshaw authorized them to do so, or had any conversation, or made any arrangement with them on the subject. Stanton says there was no other agreement between him and Henshaw than the one before mentioned as having been made in the spring or fore part of the summer of 1854.

It appears that in a conversation between Henshaw and Stanton, Henshaw told Stanton that the check was received by said firm and placed to his, Henshaw's, credit, and when Stanton paid him, it was to be placed to Stanton's credit; and he asked Stanton what would be done, as he, Stanton, could not raise the money, and that Stanton replied, in súbstance (with that view of the matter), that he, Henshaw, should send to the firm and get the balance, having received 100 dollars. This conversation took place between the middle of January and February, 1855.

Stanton failed in February, 1855, and there was testimony having a tendency to show that for a year or more before that, Henshavj distrusted his solvency.

An effort was made to impeach the testimony of Stanton, but that wás mostly if not totally a failure.

The above are believed to be all the material facts involved in the case.

There is no question made as to the draft named, being received by Cooper, IAppencott, Coffin, Sf Co. as money, and treated as such by them, and of course we raise none in that respect.

It is insisted, however, that, under the facts disclosed by the testimony, the firm, upon the receipt of the draft, became the debtors of Stanton and not of Henshaw, and that they are not liable to Henshaw; that the draft really belonged to Stanton, by virtue of the agreement between him and Henshaiv. But we do not think the evidence sustains this position.

The money belonged to Hensliaw, in his fiduciary capacity, and it was sent to the firm, in the form of the draft, with directions to place it to his credit and await his further orders, which was done by the firm. As between Henshaw and the firm, there does not appear to have ever been any understanding that it should be placed to the credit of Stanton, nor did Henshaw ever authorize Stanton to direct the firm to place it to his credit.

These facts would, of course, make the firm liable to Henshaw for the draft, and we do not think that liability, at all affected by the fact that Henshaw had agreed with Stanton to let him have the draft, and that' Stanton had furnished the name of the firm-to whom the draft should be sent, and had written the firm advising them that they would receive the draft from Henshaw, to be placed to his, Stanton’s, credit. The real question is, to whom did the firm become indebted upon the receipt of the draft? Very clearly, to Henshaw, as it was received from him through J. Peele, by his direction, and placed to his credit. This liability of the firm to Henshaw, was not discharged by the agreement between Henshaiv and Stanton, to which the firm was in nowise privy.

G. W. Julian and J. B. Julian, for the appellants.

J. Perry, for the appellee.

Upon the receipt of the draft by the firm, they became liable to only one of these persons for the amount of it. That liability was not to Stanton, as it belonged to Henshaw (the title not having passed by his agreement to let Stanton have it); it was received by the firm as Henshaw’s, and he was credited with the amount of it.

In order to discharge the liability to Henshaw, there must have been some agreement, express or implied, that the firm should become debtor to Stanton instead of Henshaw, and that the credit should be transferred to Stanton; and this contract should be of such a character as to render the firm liable to Stanton for the draft.

No such agreement is shown to exist in the case. "We regard as immaterial, the fact that the firm gave Stanton credit for the draft in the settlement of their claims against him, as it does, not appear from the evidence that they had any authority from Henshaw to do so.

The finding appears to have been in accordance with the evidence, and the judgment must be affirmed.

Per Gu/riam. — The judgment is affirmed with costs.  