
    Norman M. Allen, App’lt, v. Hiram F. Henry, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Principal and agent—Proof.
    The evidence considered and held sufficient to establish agency to procure discount of the note.
    Appeal from a judgment entered on a nonsuit, and from an order denying a motion for a new trial, made on the minutes of the court.
    
      William Henderson, for app’lt; Sherman S. Rogers, for resp’t.
   Haight, J.

This action was brought to recover the amount of two promissory notes,—one for $3,000, dated July 30, 1889, and the other for $1,000, dated September 25, 1889. Inasmuch as the allegations of the complaint and the evidence given upon the trial are substantially the same in reference to each note, we shall consider that only which pertains to the first note. The instrument is as follows:

“ Gowanba, July 30, 1889.

“ On demand, I promise to pay to F. Munson three thousand dollars, with interest, for value received.

“$3,000.00. H. F. Henry.”

The complaint, in substance, alleges in reference thereto that, at the time of the making of the note, Munson was the agent of the defendant, and had been such agent for some time theretofore, and continued to be such agent for some time thereafter, in the financial affairs and business of the defendant; that the defendant, at the time of making the note, desired Munson to procure for him the sum of $3,000, and to enable him to do so he made, executed , and delivered to Munson the note in question; that he delivered the note to Munson, who received it as such agent, for the purpose and with the authority to sell and transfer it to whosoever would pay him for it the sum of $3,000. The complaint further alleges that Munson on the same day did sell, transfer and assign the note to the banking firm of N. M. Allen & Son, who were co-partners, and doing business as bankers; that N. M. Allen & Son drew their draft for the sum of $3,000 upon the • Seaboard National Bank of New York, payable to the order of Munson, and delivered the same to him for such note, and Munson thereupon indorsed the said draft, and delivered it to the defendant, who subsequently indorsed the same, and drew the money thereon. The answer admits that from time to time, before and after the making of the note, Munson had been authorized to do and perform certain acts for the defendant, but denies that Munson was ever the general agent in the financial affairs of the defendant, or that he was the agent of the defendant in the transaction pertaining to the note. The answer alleges a counterclaim consisting of checks drawn by N. M. Allen & Son upon themselves amounting in the aggregate to the sum of $28,000. Upon the trial the making of the note was admitted, and evidence was given showing its assignment to N. M. Allen & Son, that it was paid for in the manner alleged in tbe complaint, and that tbe plaintiff has succeeded to the interest of N. M. Allen & Son.

The nonsuit appears to have been ordered upon the ground that the plaintiff had failed to establish that Munson was the agent of the defendant It is now contended that the court erred, and that the plaintiff was,entitled to judgment. If the allegations of the complaint, of agency, can be treated as surplusage, the plaintiff’s claim must be sustained. But this question we do not at this time determine. As to whether Munson was an agent, it appears that a former action had been tried between the parties, based upon the check set forth in the counterclaim, in which it appeared that the defendant transmitted money and drafts to Mun-son, to take and deposit the same with Allen & Son.; that he did so, procuring checks therefor, which he indorsed over to the defendant. And upon that trial he testified that he had consulted lawyers in reference to them, and was finally convinced that they were safe and certain, and then remarked: “ But I suppose that Mr. Munson, from the first to the last, was a middleman between us. He received my money, and sent it on.” It is claimed on behalf of the appellant that this admission shows that'the defendant regarded Munson as his agent, and that the note was transmitted to him in the same way that he had transmitted money and drafts for deposit. On behalf of the respondent, it is contended that the admission only had reference to the cheeks, and did not include the notes. But to our mind the transaction itself speaks louder than words. The facts are undisputed. The defendant drew the note, and delivered it to Munson. There is no pretense that Munson paid anything therefor. Munson took the note to N. M. Allen & Son, and transferred it to the firm by an assignment upon the back thereof. He did not in any manner indorse it so as to become liable thereon. N. M. Allen & Son drew their draft for the amount upon their correspondent in New York, and delivered it to Munson. Munson took the draft, and delivered it to the defendant, who drew the money thereon. The facts are very similar to those of Commercial Bank v. Cameron (recently considered by this court) 61 St. Rep. 402; 29 N. Y. Supp. 505, in which it was held that the person so procuring the money for another was an agent, or at least that the trial court would be justified in so finding. It does not appear to us that the letter from Munson to Henry, dated September 23, 1889, contradicts or impairs the inferences to be drawn from the facts alluded to. In this letter he makes a statement of the defendant’s account up to October 1st. In it he charges interest on $3,000 from July 30th, and on $1,000 from September 23rd, from which it is contended that the charge was made in his own behalf, as if he was the holder of the notes. But, if such is the purport of his letter, then why does he credit the defendant with three months’ interest on $28,000 and deduct the amount of interest accrued upon these notes therefrom ? The $28,000 was on deposit with N. M. Allen & Son. The defendant held the firm’s checks therefor, and why should Munson deduct the interest belonging to him upon the notes from interest that had accrued and was owing from Allen & Son ?

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

Dwight, P. J., and Lewis, J., concur; Bradley, J,, concurs in the result.  