
    Cornelia R. Kane, Ex’rx, App’lt, v. Robert Lenox Belknap, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    Money had and received—Proof of investment.
    On the trial of an action brought to recover certain money received by defendant from plaintiffs testator, and which defendant claimed he had invested under a power of attorney from deceased, the only question left in the case was whether defendant actually invested §5,000, as was his duty to do. It appeared that defendant and deceased were in the habit of borrowing of each other to keep their bank accounts good, and that §5,000 was loaned by deceased to defendant on a certain day and deposited to the latter’s credit. The person who was bookkeeper for both parties at the time testified that at a subsequent date the defendant drew a check for §5,000 against deceased’s account, which was never used, but which was to have been invested in a contract with the firm of Grant & Ward, who subsequently failed, and that instead defendant paid his previous loan of §5,000 by investing it in the contract. A letter was introduced in evidence, written after the failure of Grant & Ward, showing that deceased had given his. consent to the investment. Held, that a verdict was rightly directed for defendant.
    Appeal from a judgment in favor of defendant entered upon the verdict of a jury directed by the court.
    
      Platt & Bowers (John M. Bowers, of counsel), for app’lt; Robert W. Weeks, for resp’t.
   Follett, J.

This action was brought to recover §14,000 on account of the following sums of money received by the defendant from the plaintiff’s testator at the following dates: December 20, 1883, $5,000; December 27, 1883, $10,000; May 1, 1884, $5,000. It is admitted that $6,000 of this sum was subsequently paid. The complaint contains two causes of action: (1) Charging the defendant with negligence in investing these sums in Grant & Ward contracts; (2) with not having invested said sums as was his duty to do. On the 1st day of October, 1873, the plaintiff’s testator executed and delivered to the defendant a power of attorney, which is, in its terms, broad enough to authorize the investment by the defendant of the sums mentioned in the way in which he claims to have invested them. This power remained in force until the death of William H. Kane, which occurred in December, 1886. The defendant, in his answer, admits that he received the foregoing sums of money, belonging to the testator, at. the dates mentioned, for investment, and alleges that he invested the same pursuant to the directions of said Kane, and pursuant to the general authority and discretion given to him, and has since fully accounted therefor, and paid over the entire proceeds thereof. The plaintiff admits, on this appeal, that as to the first and second items it was right to direct a verdict for the defendant, but insists that it was error to refuse to submit to the jury the question as to the plaintiff’s right to recover for the $5,000 received May 1, 1884. There was an entire failure to sustain the first cause of action, for the evidence furnished by the testator’s letters and the testimony of Stevenson established, beyond doubt, that the testator authorized the defendant to invest in those so called contracts. May 9, 1884, the defendant wrote Kane, stating that he had invested these sums in Grant & Ward contracts, and informed him of the failure of that firm. On the 26th of the same month, Kane replied, saying, among other things relating to the same subject: I do not blame you at all, as I gave you my consent to your loaning it to them before I left, last fall.” Stevenson, a witness called by the plaintiff, testified that he heard Kane direct the defendant to invest $20,000 of his money in those contracts. In addition to this the statements rendered by the defendant to the plaintiff from time to time showed that such investments had been made, and the sums allowed as profits had been credited to Kane.

The sole question left in the case is whether the defendant, on the 1st day of May, 1884, actually invested $5,000 with Grant & Ward, for Kane. That he had authority to make such investment is established beyond question; and it is also conclusively shown, by the correspondence between them subsequent to the failure of Grant & Ward, that the defendant reported that he had invested that sum with them, and that Kane acknowledged his right to make the investment Did the defendant make a misstatement in regard to having made the investment? If he did, he is liable. Was there sufficient evidence to make this a question of fact for the jury? It is claimed that the investment was effected through the following transactions: March 13, 1884, the defendant drew a check on the bank account of Kane for $5,000, which was deposited to the credit of the defendant’s bank account. This was, in effect, a call loan made by Kane to defendant through the agency of the latter. It may be that the terms of the power of attorney are not broad enough to authorize the defendant, as agent, to borrow for himself the money of his principal. However, this point- is not raised, and it appears from the evidence thaf defendant had previously borrowed money of Kane in the same manner, and. had made loans to Kane by checks drawn upon his account, which were deposited to the credit of Kane’s bank account. This seems to have been a mode adopted of keeping their bank accounts good. The defendant insists that he paid this loan May 1, 1884, by investing $5,000 in a Grant & Ward contract, and by depositing to the credit of Kane’s bank account a check for $33.33, interest on thé loan at the rate of five per cent. Kane’s bank account is in evidence, in which there is this entry: “ May 1, 1884, call loan of March Í3th pd., and int., 5 per ct., $33.33.” An account showing this item was rendered by the defendant to Kane up to July 10, 1884, who acknowledged its receipt by a letter dated August 1st, in which he says that the account is correct In the same account, Kane is charged with an investment of $5,000 on that date, which is the item claimed to have been invested in a Grant & Ward contract. The assertion of the defendant is that instead of drawing a check against his own account, and having it credited to Kane’s bank account, he paid the loan by investing the sum as before stated. The plaintiff, to establish her cause of action, called Mr. Stevenson, defendant’s bookkeeper, who also kept the account of Kane while he was absent in Europe. He testified positively that the defendant, on the 1st of May, paid the loan by investing $5,000 in a Grant & Ward contract, and that he personally made that investment The plaintiff seeks to raise a doubt as to the truthfulness of this testimony by producing Kane’s check book, which, during the early part of 1884, was kept by Stevenson. In this book there is a check and a stub, of which the following are copies:

Stub.

Check.

4,460. 3 No. 4,460. New York, 1 May, 1884. 1st May, 1884. M National Bank of Commerce. R. L. Belknap, for Pay to the order of W. P. Stevenson Pive investment in Ó. & Thousand.... W., 5,000. 1 $5,000, William H. Kane. By R. L. Belknap, Atty.

This check has never been used, and the signature has been canceled. Stevenson, who drew the check and made the investment as the agent of the defendant, testified that the check was not used, so as to avoid two unnecessary transactions and entries, to wit, the drawing of a check by the defendant on his bank account in payment of the loan from Kane, and depositing it to his credit, and then the use of the check above set forth in payment for an interest in a Grant & Ward contract purchased by the defendant for Kane on that date. This was positively testified to, and we are unable to see any suspicious circumstances connected with the transaction, making it necessary to submit to the jury the question of the truthfulness of the undisputed testimony of Stevenson. More than this, after Kane’s return from Europe this check book was returned to and used by him, and the transaction was never repudiated nor questioned by him. If, as the plaintiff asserts, the defendant did not make the investment, and his claim to have done so was a fraudulent afterthought, it is difficult to see why no attempt was made to conceal this so-called evidence of guilt, as there was ample opportunity for doing so. We think the check and stub, in connection with the circumstances, sustain, rather than discredit, the testimony of Stevenson, and that a verdict was rightly directed for the defendant, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.  