
    Eighth Ward Bank of Brooklyn, Respondent, v. John McLoughlin, Appellant.
    Second Department,
    June 8, 1906.
    Principal and agent—bills and notes, when drawee of-order accepts as agent of another — when principal bound by acceptance by agent.
    An owner of real estate made written application to one Pelletreau, a broker, fbr a loan upon his premises, -to be used for the construction of buildings thereon. The application contained the words, ‘ Loans to be made by John McLoughlm,” and was indorsed across the face, “Accepted, and agree to produce said loan as stipulated. Yenette P. Pelletreau.” Thereafter the owner executed to John McLoughlin, the defendant, his bond, payable on demand, containing the provision, “ it is expressly agreed that the owner of this bond shall he under no obligation to make any advances whatever on this bond, and that said owner can at any time demand and thereupon collect whatever advances have been up to that time made, with interest.” The bond was secured by a mortgage upon the premises, with a like provision. Orders were drawn upon Pelletreau by the owner of the land, and on those orders the plaintiff advanced moneys which were used iu carrying on the work of construction of the buildings on the premises. The plaintiff seeks to recover on the theory that» Pelletreau, in accepting the orders, was the agent of the defendant. The amount of the bond and morigage was in excess of the amounts advanced by defendant and of said orders.
    
      Reid, that the evidence sufficiently established that Pelletreau was acting as agent for the defendant in accepting the orders; that defendant knew the orders had been issued and used to secure ready money tó carry on the work of construction until the various installments provided for by the loan mortgage should be realized, and there was au obligation on him to see that the advances were applied to the payment of tiie orders. Under such,circumstances the defendant . is estopped from questioning his liability.
    Appeal by the defendant, John McLoughlin, from a judgment • of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Kings on the 27th day of June, T904, upon the verdict of a jnrv, and also from an order entered in said clerk’s office on the 15th day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles A. Murphey, for the appellant.
    
      Edward M. Grout [Paul Grout with him on the brief], for the respondent.
   Woodward, J.:

The Eighth Ward Bank of Brooklyn brings this action to recover the sum of $10,500 and interest on seven written orders made and signed by one Edward Burke on one Vennette F. Pelletreau,-directing the latter to pay the plaintiff the sums of money mentioned in said orders, and the question submitted to the jury was whether the said Pelletreau was the agent of the defendant in the'transaction to such an extent as to bind the latter to the payment of these orders, it being conceded that all of the money which the defendant had agreed to advance had been paid on and used in the construction of certain buildings on Pierrepont street in the borough of Brooklyn.

" It appears from the evidence that on the 8th day of February, 1899, Edward Burke, the owner of the legal title to the premises on Pierreppnt street, made- an application through' his brother, J ames Burke, the real owner of the premises, and the party directly •interested, to Yennette F. Pelletreau, a broker, for a loan upon these premises for $99,000, signing a written application ¡therefor _ agreeing to pay a commission of $4,000. This application contained the words, “Loans, to be made by John McLoughlin,” and was indorsed across the face, “ Accepted and agree to produce said . loan as-stipulated. Yennette F. Pelletreau.” This paper was not sigñéd by John McLoughlin, and another paper, without signature, mentioning the amoupt' desired on each house, was- introduced and received .in evidence, and these,. James, Burlce testifies, were “the .only papers that I worked under with Mr. McLoughlin in building. - the "buildings.”

•On the 18th day of May, 1899, Edward. Burke (who. was coneededly a dummy to hold the' legal title to the premises in.behalf of .lii.s Brother James) executed to the defendant, John McLoughlin^ his bond, in the sum of $96,500, payable on demand, which contained a.pro vision that “it is expressly - agreed that the owner of this bond shall be undér nó obligation to make any advances whatever on this bond, and that said owner can at any time demand, and thereupon collect, whatever advances have been‘up to that time made, with interest,” it being the evident purpose- of the parties to .secure merely the advances which should be made, not to-contract for advances which the defendant was under obligations to .make in ■ the future; This bond was secured by a mortgage upon the premises mentioned, and - contained the same provision as that 'quoted above in the bond. Attached to the bond, and forming a part thereof, were various receipts signed by Edward Burke in person or by-Janies Burke, attorney, dated between May 18, 1899, and March 12, 1900, aggregating -$84,900. These receipts were all on the same, '•form, and contained the same .provision in reference to the liability "of the owner of the bond to make advances. After these advances . Bad been made to-Edward Burke as dummy for Ms brother James, -a-transfer of the,-premises was made to Mary A. Sproule, a cousin of James Burke’s wife, who seems to have occupied also the position •of a dummy to hold the legal title, and soon, after this transfer Edward Burke died. On the 28th of March, 1900, Mary A. Sproule, the then legal owner of the premises, signed a written application similar to the one which had been originally signed by Edward Burke, to Pelletreau, for a loan of $11,600 on the same premises, which application contained the words, Loans to be made by John McLoughlin,” and the additional words, “ Incumbrances, adverse claims and defects $84,000xodd ahead of this loan,” and it is in evidence that Mary A. Sproule paid a commission of $580 for this loan. A bond and mortgage similar to those made by Burke in the first instance were made and delivered, and it is apparent that the transaction was merely a continuation of the original provision for a loan of $96,500, and the only question presented on this appeal is whether Pelletreau was so far the agent of the defendant that the filing of orders upon the payments which were made under this loan\ arrangement imposed an obligation upon the defendant to pay such orders, where the fund has been otherwise disposed of, by payments made in the course of construction.

It is undoubtedly true that the defendant was not under any obligations to make advances under the provisions of the bond and mortgage; he could, at any time, have refused to make advances, and the plaintiff would have had no claim upon him under these several orders, even assuming Pelletreau to have been fully authorized to act for the defendant, for there was no contract that the defendant would furnish any funds. • The contract was for the payment of the loans which might be made, not for the- defendant to make further advances. But the defendant did make advances; he furnished funds up to the full amount of the original bond and mortgage, and if Pelletreau was in fact his agent, knowing all of the facts in reference to the loan; knowing that these orders were outstanding— for they were filed with Pelletreau, who had given assurances tq Burke that he would accept the orders and that they were all right — it seems clear that there was an obligation on the part of the defendant to pay these orders, either out of the fund which he had been secured to advance, or out of his own pocket. The transaction appears to have been somewhat loosely conducted, but if Pelletreau was the agent of the. defendant the facts developed on the trial are sufficient to show that the defendant knew that these orders had been issued ; that they had been used to secure ready money to carry on the work of construction until the various installments provided for by the loan mortgage could be realized, an.d there was an obligation to see to it that the. advances were applied to the payment of these orders. With a knowledge of the facts the defendant is fairly estopped from questioning his liability,at this time, for he knew, if his agent knew, that the plaintiff was advancing money to be put into these buildings upon the strength of these 'orders, which Pelletreau had promised ;to accept and which he had d¿dared to be all right.

Upon the question of whether Pelletreau was the agent , of the , defendant the evidence was conflicting and not wholly satisfactory, and yet, as we review the record, we cannot say that there is not evidence from which the jury might not properly conclude that the-defendant had employed Pelletreau in a wider agency than that of a mere broker ; that Pelletreau was in fact the agent of the defendant, authorized to disburse the funds as they were advanced. This was the only question submitted to the jury, and as we .are satisfied .that there was this question- to be determined, and the evidence warrants the conclusion reached-, the judgment and order appealed .from should be affirmedj with costs.

Jenks, Hooker and Rich, JJ., concurred.-

Judgment and order affirmed, with costs.  