
    Michigan Carbon Works, Resp’t, v. Charles H. Schad, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Contract—Void nor want on mutuality—Made valid by execution— Execution in duplicate.
    This action was brought to recover for a quantity of merchandise alleged to have been sold by the defendant as plaintiff’s agent, and the money for which he was alleged to have converted to his own use. Two certain instruments. setting forth the terms of a proposed contract between the parties, were drawn up and signed by the defendant and delivered to an agent of the plaintiff. One of these was not signed by the plaintiff, and it was not shown upon the trial that the other was. The parties, however, assumed toward each other the relations outlined in the instruments immediately on their execution by the defendant. Upon the introduction of one of the instruments, objection was made that it was not signed by the plaintiff. Held, that a promise, void fay want of mutuality, becomes valid and binding upon the execution of it by the promisor.
    2. Same—Liability under.
    The contract provided that the defendant should sell certain goods for the plaintiff, the title to the goods and proceeds remaining in the plaintiff. Held, that the defendant was properly held liable for all money received by him on sales.
    Appeal from a judgment entered upon a verdict rendered at the Niagara circuit, and from an order denying motion for new trial.
    
      E. M. & F. M. Ashley, for resp’t; William C. Green, for app’lt.
   Haight, J.

This action was brought to recover for a. quantity of Homestead’s superphosphate, which it is claimed that the defendant had sold for the plaintiff as agent, and had converted the money derived from said sale to his own use. The evidence tends to show that an intrument, in writing, was prepared, in and by which the defendant was appointed to sell the plaintiff’s fertilizer upon commissions agreed upon ; that he should keep a sufficient, amount on hand to supply the demand of the trade in his-territory, and that such fertilizer held by the defendant, and all the proceeds of sale held by him during the existence of the agreement, should continue and remain, at all times,'the property and money of the plaintiff.

It appears that the instrument was drawn in duplicate; that both were signed by the defendant, and transmitted to the plaintiff at its place of business in Detroit, Michigan; and some evidence tends to show that on a former trial of this action one of the duplicate agreements was seen in the possession of the defendant’s attorney; but the evidence upon this point leaves the question in doubt as to its being a duplicate, and does not show that it was signed by the plaintiff. The duplicate agreement produced by the plaintiff' upon this trial was signed by the defendant, but is not signed by the plaintiff. Immediately after the agreements were drawn and signed by the defendant, he, through the agent of the plaintiff, made an order .for a quantity of the phosphate; and the evidence tends to show that he thereafter received and sold a large quantity; that he collected and had in his hands a balance not paid over at the time the action was brought, amounting to $1,193.53, which, with the interest accrued thereon, would make the amount of the verdict.

It is contended, in the first place, that it was error to admit the contract in evidence, for the reason that it was a mutual contract, and was not executed by the plaintiff. We are inclined, however, to the view that, under the circumstances of the case, the contract was properly received. The evidence tends to show that the parties commenced doing business under it, and was continued for a considerable time; that the paper was in fact executed and delivered by the defendant, and was held by the plaintiff, who produced it in court upon the trial of this action. The defendant gave his first order immediately after the contract was signed and delivered by him to the plaintiff’s agent, and thereafter received the phosphate called for; thus indicating an intention on the part of the parties to the contract, to carry out and become bound by its provisions; and the rule is that a promise void, for want of mutuality, becomes valid and binding upon the execution of it by the promisee. Marie v. Garrison, 83 N. Y., 14; Chouteau v. Suydam, 21 id., 179.

It is contended, in the second place, that the evidence in reference to the duplicate contract delivered to the defendant was improperly received. We do not regard it worth while to enter upon a discussion of this question for the reason that the evidence failed to show that the duplicate was, in fact, delivered to the defendant, or that it was signed by the plaintiff; and, in the absence of this evidence, that which was received was of no account and could do no harm.

Again, it is claimed that the contract established an agreement between the parties by which the defendant engaged to sell the phosphate for a commission to be paid; that he was to guarantee the payment of the sums for which the sale might be made, and that he was authorized, to sell on time; that he became a surety and could not be held liable for a conversion. All this may be true as to the phosphate sold on credit, and which had not been collected by the defendant. But under the express provisions of the contract the fertilizer on hand and the money derived from the sale thereof was to continue and remain the property and money of the plaintiff. So that whilst he may not be liable as for a conversion for the money not collected on .sales made by him, yet as to the money received by him on sales made, it appears to us that he was properly held liable. Wallace & Sons v. Castle, 14 Hun, 106.

The judgment and order should be affirmed.

Barker, P. J.; Bradley and Dwight, JJ., concur.  