
    Thallhimer against Brinckerhoff, Gentleman, one, &c.
    UTICA,
    Aug. 1826.
    Assumpsit for money had and received, tried at the New-York circuit, October 5th, 1824, before Edwards, C.. Judge.
    
      T„ having held in°posses-siou by others, made an agreement, not void for champerty or maintenance, in consideration of Th?s agreeing to furnish pecuniary assistance about recovering the land, that he would convey one-fourth of the land which should be recovered, to Th. T. appointed B. his attorney to conduct suits for the recovery of the land. The suits were finally compromised by T. who conveyed to the possessors by various deeds executed by B. as his attorney, which deeds acknowledged the receipt of the consideration money.
    
      Heidi that an action for money had and received, would lie against T. if he had received the money, in behalf of Th. for one-fourth of the money so received by T. But B. having received the money, held* that the action lay against him.
    
      Heidi also, that the deeds executed by B., as attorney for T., were prima faeia evidence that B. had received the money.
    What is sufficient evidence, that B. knew of Tits claim under the contract.
    What is sufficient evidence, that Th. knew of B's payingover the whole proceeds of the compromise to T. ; and that he (Th.) acknowledged T. 'as his agent to receive the proceeds ; and looked to him for hie, TfCs, share of them, and not to B.
    
    Where an agent is authorized to receive money for his principal, or do any other thing, his drafts, receipts, account stated, or admissions relative to the subject of his agency, and especially when all these are offered in connexion, constitute a part of \he res gesta; and are competent, though not conclusive evidence against the principal.
    Due notice being given to produce a letter, written by one party to another; and the latter refusing to produce the letter ; the former offered to prove by his clerk that he copied the letter into a letter book, and that it was his invariable custom to carry letters, thus. copied, to the post-office; and seldom handed them back; held, that this was sufficient evidence of sending Ihe letter, though the clerk could not recollect that he sent the particular letter; and that a copy was admissible in evidence.
    'At the trial an agreement was given in evidence between the plaintiff and one Henry R. Teller, dated April 1 Oth, 1807. This agreement recited a claim to certain lands by Teller, to whom the plaintiff was related ; and provided, that on its recovery, the former would convey to the plaintiff one fourth of it. Teller made the defendant his attorney, for the purpose of recovering the land ; but instead of actually taking possession of it, the claim \vas compromised between Teller and the possessors, who paid a large sum of money, which came to the hands of the defendant; and for one fourth of which this suit was brought, (See the agreement more at large, 20 John. 386, where its legality came in question. It was adjudged legal 3 Cowen, 623, S. C. on error.)
    On the compromise, various deeds were executed, by the defendant, as the attorney of Teller, of different parts of the land, expressing the consideration received in money ; and these were offered by the plaintiff, and admitted, (though objected to,) as evidence, prima facie, that the defendant had received the money.
    The judge overruled a motion for a nonsuit, made on the ground that the action for money had and received would not lie at the suit of the plaintiff.
    The defendant set up in his defence, that he knew nothing of the agreement between the plaintiff and Teller, until after he had paid to or for Teller, and the latter had discharged him from all the moneys he had received ; and that Teller was in truth the agent of the plaintiff, to receive the money, or otherwise discharge the claim for it. Among other evidence to show this, he offered to-prove a correspondence between himself and the son of the plaintiff, Barent Thallhimer, who, he insisted, was the agent of the plaintiff. This correspondence was offered particularly to show, that long after the defendant had received the money, this being known to the plaintiff, he had acknowledged himself indebted to the defendant on mortgage ; and had set up no claim for the moneys in question. Notice had been given to the plaintiff, to produce the letters written by the defendant; but the judge rejected his letter book as evidence ; though the plaintiff declined to produce the letters called for by the notice. The offer of the letter book was accompanied with evidence which will be found detailed in the opinion of the court.
    
      Where letters are written in a course of business or negociation by nn agent» they are evidence against his principal, so far as they relate to the subject of his agency; but no farther.
    Where mortgages are assigned, or conveyances executed, acknowledging the receipt^ of the consideration by the assignor or grantor, this is, prima facia, evidence that the consideration was actually paid, as expressed-; and this, too, although the assignor or grantor was at the time indebted to the assignee or grantee, to the amount of the consideration expressed, The assignments or conveyances shall not, for that reason, be taken to have been in satisfaction of the debt.
    
      Various mortgages taken by the defendant on the sale of the real estate, payable to Teller, had been assigned by the latter to the defendant, for a consideration expressed in the assignment to have been received by Teller. The registry of these assignments was offered in evidence against the defendant, but rejected.
    The judge admitted in evidence, though objected to by the defendant, Certain conveyances of land from Teller to the defendant, in which a consideration was expressed to have been received by Teller.
    
    The defendant offered in evidence certain receipts, drafts, and an account stated by Teller, shewing the receipt of, and final settlement for the money in question; which were rejected by the judge.
    The defendant excepted to the various decisions of the judge, which were against him.
    The verdict was for the plaintiff, for upwards of $13,-500 ; and the cause now came here on motion by the defendant for a new trial, on the bill of exceptions ; and also on a case made.
    The above is a very slight outline of the facts to which the points of law decided by the court relate.
    To say more of the facts here, is deemed unnecessary ; as they will be found sufficiently stated in the opinion of the court.
    
      
      G. Brinckerhoff, for the defendant,
    said an action for money had and received, would not lie. The plaintiff being liable to 1-2 or 1-4 of all the expenses incurred in the recovery of the land, the accounts of the parties cannot be , , ~ r . adjusted m this suit. The plaintiff considered Teller alone as accountable to him ; and the defendant was accountable to Teller only. The plaintiff never gave the defendant notice to retain the money; and made no demand till after the defendant had paid over the money to Teller. (3 John. Ch. Rep. 473, and the cases there cited.) The decision of the court of errors, in Thallhimer v. Brinckerhoff, S Cowen, 623,) so far as it relates to the form of the action, and the nonjoinder of Teller, is out of the case and not binding. (13 John. Rep. 577. 1 Hopkins’ Rep. 77, 8, 290. 7 John. Ch. Rep. 305,310. 16 John. 233.) The letter book and the parts of letters rejected by the judge, should have been received. (4 Campb. Rep. 193. 3 id. 379, 305. 2 Phil. Ev. 20, note (a.) He examined at large the various decisions of the judge, noticed hereafter in the opinion of the court, and insisted that they were erroneous.
    
      S. G. Huntington, contra,
    examined the decision in Thallhimer v. Brinckerhoff, (3 Cowen, 623;) and insisted that this case settled the form of the action; and that it was correctly brought in the name of Thallhimer alone; The judge was therefore right in denying the motion for a nonsuit. He argued at length in support of the other decisions of the judge at nisi prius.
    
    A full history of the arguments is not given ; because they would not be intelligible without a very long detail of facts, not deemed material to the law of the case.
   Curia, per

Sutherland, J.

The first question which

arises is, whether, under the circumstances of this case, an action for money had and received can be sustained by the plaintiff". His rights all grow out of the agreement between him and Henry R. Teller, of the 10ÍA of April, 1807. That agreement was originally held by this court, ' fo be void as against the act, (1 R. L. 172,) to prevent champerty and maintenance. (20 John. 386.) But the court of errors reversed that judgment, and established the validity of the contract. (3 Cowen, 623.) Whether that agreement was void or not, was the only point which strictly and properly arose upon the bill of exceptions. But the counsel discussed, and the court of errors expressed an opinion upon the question, whether, admitting the agreement to be valid, an action for money had and received could be sustained by the plaintiff. And although that opinion cannot be considered as settling the point on the ground of authority, it is entitled to great weight in the consideration of the question.

It was obviously the intention of Teller to give to Thall-Mmer a right to one fourth part of whatever might be recovered in the suits, which the agreement recites he was about to commence. The inducement to the agreement was not only a natural and meritorious one, but the consideration on which it was founded was valuable, and such as, under all the circumstances of the case, made the arrangement an act of prudence and discretion on the part of Teller. It was foreseen that the controversy would be protracted and expensive. Its result could not be anticipated with certainty ; and Teller knew, if he should fail to recover, that the costs and expense of the controversy would be enormous. He acted wisely, therefore, in guarding against a result that would have been so ruinous, by the agreement which he made with the plaintiff. If the suits had proceeded to judgment, and the land had been recovered, Teller was expressly bound by his covenant to convey one fourth part of the property to the plaintiff. The agreement made no express provision for the case of a compromise. But the legal title being admitted to be in Teller, he had a clear right to discontinue, or settle the suit, on such terms as he pleased; and if he acted with good faith, and under the advice of counsel, all that the plaintiff could require, would be to participate in the fruits of the compromise, in the same proportion to which he would have been entitled if the land itself had been recovered. If the money had been paid to Teller upon the • compromise, whether he had a right to compromise or not, there can be no doubt, that Thallhimer might have affirmed the settlement, and recovered from him one fourth of the amount. It would work the grossest injustice, to give to the agreement a construction which would enable Teller to defeat its beneficial operation, so far as the plaintiff is concerned, by a settlement; and then to answer the plaintiff’s claim by saying that his contract bound him only to convey one fourth of the land recovered, and not to pay one fourth of the money received in lieu of the land. The sense of the contract evidently is, as remarked by the chancellor, (3 Cowen, 649,) that in the event of success, Thallhimer shall have one fourth part of the property, whether the fruits of the claim should be realized in land or money.

If an action for money had and received could have been sustained by the plaintiff against Teller, on the money being paid to him, I perceive no reason why it cannot, against the present defendant, admitting the money still to be in his hands, or to have been paid over to Teller without the authority of the plaintiff, either express or implied. It is no objection to the action, that Thallhimer was to bear a proportion of the expenses of the controversy. It may be questioned whether, according to the true construction of the contract, he was to pay any thing before the termination of the suit; for the agreement provides, that if the suits should he unsuccessful, he should pay half the expenses ; but if Teller should recover, then only one fourth of them. Pending the controversy, therefore, what proportion was he to advance ? The testimony of Mr. Emmet renders it probable, that when this agreement was made, it was understood between the parties and their counsel,. that a very small proportion, if any, of the costs, were to be paid, until the final termination of the suits. He expressly says, that such was the agreement in relation to the counsel fees ; and that they were not paid until after the compromise. The attorney’s fees, it is evident, were not advanced by Teller; for Brinckerhoff now claims the $15,000 at whieh they were liquidated, and paid by the defendants in the suits. But if they had been previousty Pa^ ⅛' Teller, that amount would belong to him, and not to Brinckerhoff. It is clear, therefore, that little or nothing was paid by Teller or Thallhimer while the suits were pending; and that there can be no account between them in relation to the costs, to be liquidated and adjusted. The costs are to be deducted from the $75,000 agreed to be paid by way of compromise ; and the plaintiff is entitled to one fourth of the balance, either from Teller or the defendant.

I think the evidence warrants the conclusion, that the agreement between Teller and Thallhimer was known to the defendant. It was in the hand writing of his clerk, and witnessed by him and the defendant. The parties, therefore, were probably together in his office; and it is irrational to suppose that an arrangement in which the defendant might eventually have so deep an interest, and which there was no possible reason for concealing, was not communicated to him. lie was probably, at that time, if he had not previously been, retained as attorney in the suits, whieh the agreement recites it was the intention of the parties to commence. A contract of so much importance, must have been a matter of conversation and discussion between the parties, at least, before it was finally concluded ; and under all the circumstances of the case, the fair, and I think, the irresisible presumption is, that the defendant was fully apprised of all its provisions.

The next inquiry is, whether Teller was authorized by the plaintiff to settle with the defendant for his share of the recovery, (assuming for the present that such settlement has in fact been made.) It is not necessary that there should have been an express authority for the purpose. If the plaintiff has subsequently recognized or rati tied the acts of Teller in that respect, it is equivalent to an original express power to perform those acts.

The power of attorney from Teller to the defendant, under which the suits were compromised, bears date the 22d of December, 1813 ; and the compromise itself took place in the following month. The deeds which are proved to have been given, bear date from December, 1813, to the following April. Independent of all evidence, it is incredible, that Thallhimer should not have known of the settlement in which he had so deep an interest. It was a matter of general notoriety. The suits affected a large number of individuals, and we have had very few controversies in our courts, the progress and termination of which were more generally known. It is not to be believed that the plaintiff, who resided within twelve miles of the city of Albany, where he had a son engaged in active business, and much nearer to Schenectady, where Teller, his brother-in-law appears to have lived, was not informed both of the fact and the terms of the settlement, about the time when it was effected. And yet no application is made by him to the defendant for his share of the proceeds of the settlement; nor any intimation given him of his intention to call him to an account, until 1821, when this suit was commenced. How is this to be accounted for, except upon the supposition, that the plaintiff considered and acknowledged Teller as his agent, and was content to leave the final settlement, as he appears to have done the previous measures, to his judgment and discretion, and to look to him, and not to the defendant, for his share of the proceeds ?

This view of the case derives strong confirmation from the circumstances attending the foreclosure of Brincker-hojf’s mortgage against the plaintiff. The mortgage was foreclosed in 1816, for the non-payment of the interest. Many letters passed between the parties, from 1816 to 1818, pressing for payment on the one side, and begging indulgence on the other. But not an intimation is to be found of any claim on the part of the plaintiff against the defendant, in relation to the Teller property. Among the various suggestions made by the plaintiff, to avoid the ruinous consequences which he apprehended from a foreclosure of the mortgage, no allusion whatever is made to the fund in question, as laving the foundation either of a legal or equitable claim against the defendant. The correspondence, from the first to the last, admits the justice of the demands, and entreats only for forbearance.

Assuming, (what I have endeavored to show must have been the fact,) that the plaintiff knew of the compromise at the time it was made ; is it credible that he remained uninformed and ignorant of the subsequent transactions between Teller and Brinckerhojf1? He must have known, (if such was the fact,) that Teller was assuming to act for him, as well as for himself, in the settlement with Brincker-hojf ; and, considering the origin of the plaintiff’s interest in the fund, that it grew out of the voluntary act of Teller, who alone appears to have taken any part in the management or direction of the controversy, nothing was more natural than that Brinckerhojf should have supposed that Teller possessed the authority which he assumed, to settle the whole claim. And the plaintiff must, under all the circumstances of the case, be considered as having subsequently affirmed, if he did not originally authorize, his acts.

It was suggested, on the argument, that the reason of the plaintiff’s omission to assert his claim against Brinck-erhojf, was, his being advised by sounsel, that the agreement between him and Teller, out of which his rights grew, was illegal and void. Admitting the fact, of which there is no evidence, it does not vary the case. It is immaterial to the defendant, what were the plaintiff’s reasons for permitting Teller to assume the character and power of an agent. He did permit it; and upon him, and not upon the defendant, must the disatrous consequences, if any have ensued, be visited.

If Brinckerhojf, therefore, has fully settled with Teller, and paid over to him the whole amount received upon the compromise of the suits, it ought, upon every principle of law and justice, to be abar to the plaintiff’s claim.

Whether the evidence in the case shows such settlement and payment, is a question which I do not intend to examine ; as I have come to the conclusion, that some material evidence, offered by the defendant upon this, as well as other points, was improperly rejected; and that a new trial must be granted. I deem it, therefore, not only unnecessary, but improper, to discuss a pure question of fact which must again, upon additional evidence, be submitted to the consideration of a jury.

The learned judge who tried the cause, decided that the defendant might show, that he had accounted with, and paid over all the money to Teller; on the ground that, the plaintiff had acquiesced in such payment; and thereby admitted the authority of Teller to act in his behalf. Under this decision, the defendant offered to prove by the receipts and drafts of Teller, that he had fully settled his accounts with him, and paid over to him all the money which he had received for and on account of the settlement. He also, for the same purpose, offered in evidence a stated account between him and Teller ; and that Teller, on the 26iA of March, 1818, twenty months before the commencement of this action, had finally settled with the defendant, in relation to the fund in question; and admitted a balance of upwards of $3000 to be due to him. The whole of this evidence was objected to by the plaintiff’s counsel, and rejected by the judge. The ground of the objection, or of the decision, is not stated in the case.

I see no legal objection, in point of competency, to any part of this evidence.

If Teller was the authorized agent of the plaintiff, for the purpose of receiving his share of the money, (and it is only upon this supposition that proof of payment to the former is admissible at all,) then his receipts or drafts for the money, or his admissions that it has been paid, are competent evidence of that fact. The agent in such a case need not be called personally, to prove the payment ; but it may be established by other evidence. I am not aware that this position has ever been questioned, where the receipt is given or admission made, at the time of the payment of the money, or delivery of the goods, or other thing which the evidence is designed to establish. So where an agency is established, what the agent says or does in making a contract, becomes part of the contractor res gesta, and is admissible in evidence against the principal. (3 T. R. 454. 7 id. 665. 1 Esp. Rep. 375. 4 Taunt. 511, 565, 663. 10 Ves. 128. 10 John. 44. 5 Esp. Rep. 135. 2 id. 515, note. 2 Campb. Rep. 555. 1 Phil. Ev. 77. 2 Wheat. 380.)

In this case we are to presume that it would have appeared from the receipts and drafts themselves, or been, otherwise shown, that they related to the fund in question. The account, I understand to have been offered in connex-ion with the drafts and receipts, and not as an independent piece of evidence ; and that the admission of a balance due to the defendant was made at the time of the settlement of the account. They all related to, and were parts of the res gesta to which the agency of Teller extended.

This evidence, therefore, I think, ought to have been submitted to the jury. It was competent but not conclusive, against the plaintiff. He might have impeached it by showing either fraud or mistake on the part of Teller, in making the settlement. What weight the evidence was entitled to with the jury, is an entirely distinct question.

I do not understand the defendant to have offered his own answer to a bill in chancery, in evidence. The case states, that he offered to read in evidence, the accounts; copies of which are annexed to an answer of the defendant to a bill filed against him, &c. Neither the answer, nor the copies of the accounts, were offered in evidence. Why any allusion was made in the case to the answer, or the copies, does not satisfactorily appear. Perhaps the phraseology of the case is inaccurate, and the answer was in fact offered in evidence. If so, it was properly rejected.

The copies of the letters from the defendant to the plaintiff, contained in what is called the defendant’s second letter book, should have been permitted to be read. The objection made to them, was, that it was not sufficiently proved that the original letters were sent according to their direction. Westuvelt, the defendant’s clerk, testified that the letters in the second book were in his hand writing. That if was his invariable practice, (o carry the original íetters to the post-office, as soon as be had copied them in that letter book. That he very seldom handed them back. The accuracy of the copy was not questioned. The only objection was, that the evidence did not make out the faet, that the original was sent. It comes fully up to what Lord Ellenborovgk, in Hetherington v. Kemp, (4 Campb. 193,) held would be sufficient. There the fact to be established was notice of the dishonor of a bill; and the plaintiff proved that he wrote a letter to the defendant, containing such notice ; that the letter was put on a table, where, according to the usage of his counting house, letters for the post were always deposited ; and that a porter carried them thence to the post office. But the porter Was not called, and there was no evidence as to what had become of the letter, after it was put down on the table. Lord Ellenborough held this insufficient. But he remarked, “ Had you called the porter, and he had said that, although he had no recollection of the letter in qestion, he invariably carried to the post-office all the letters found upon the table, this might have done.” Now the clerk, in this case, does swear that it was his invariable custom to carry to the post-office the original of all the letters copied by him. In Miller v. Hackley, (5 John. 375,) the notary testified that it was usual for him, where the drawer or endorsers lived at a distance, to send a written notice of the dishonor of the bill to them by post, on the evening of the same day ; and that he believed he had sent such notice in that way in the present ease. This was held sufficient in the first instance. In such cases, too, strict proof is always required. (3 Campb. 305, 379. 2 Ph. Ev. 20, note.)

It was satisfactorily proved that Barent Thaiihimer acted as the agent, and with the knowledge and approbation of his father, in his negotiations and correspondence with the defendant, upon the subject of his mortgage. So far, therefore, as his letters strictly relate to that topic, they' are competent evidence against the plaintiff: no farther. The letters of the X>th of January and the 6th of February. 1816, are not of this description, and were properly exclu • ded by the judge. The plaintiff’s claims against Tellef had no connexion with Brinckerhoff’s mortgage ; and an authority to his son to correspond with the plaintiff in relation to the mortgage, conferred no power upon him to bind or commit him by any representations or declarations that he might make in relation to other topics. There is no proof that he was the authorized agent of his father in the settlement of his demands against Teller. When he says, therefore, in his letter of January 5th, that in his opinion $2000 will balance accounts between Teller and his father, he speaks without authority, and of course without effect. The same observations apply to the letter of the Gth of February. The opinion of the master of the rolls in Fairlie v. Hastings, (10 Ves. 125,) is very clear and explicit on this point. And all the cases already cited upon the authority of agents to bind their principals, by their acts or declarations, are applicable here.

The acknowledgment contained in the deeds executed by Brinckerhoff, as attorney for Teller, that the consideration money expressed therein had been paid, was correctly held by the judge, to be prima facie evidence, that the money was actually paid to him. If such was not the fact, he had it in his power to show to whom it was paid, by calling the different grantees as witnesses. Brinckerhoff was properly allowed credit for all the mortgages given directly to Teller.

If the acknowledgment of the receipt of the consideration money in the deeds executed by Brinckerhoff, as attorney, is evidence of the payment of the money to him, then, upon the same principle, the consideration money of the mortgages assigned by Teller to Brinckerhoff, and for the different lots conveyed to him, must be presumed to have been paid by Brinckerhoff to Teller, as all those instruments contain a similar acknowledgment. There is nothing to show that those assignments and conveyances were made in part payment of Brinckerhoff’s debt; and wrere not, as they purport, distinct and independent purchases. He cannot, therefore, be charged with those sums. A ease, however, involving so large an amount of property, ought not to be decided upon such slight presumptions, where evidence of a much more satisfactory character must be in the power of the parties.

I am not aware of any other point upon which it is important for the court to express an opinion.

New trial granted.  