
    
      WELSH vs. BROWN.
    West'n District.
    
      Sept. 1821.
    Appeal from the court of the fifth district.
    Payment of a note to a person who has not, at the time the possession of the note, or any authority to receive its amount cannot avail, although he afterwards receive the note with authority to collect its amount.
    Brent, for the plaintiff.
    This suit was instituted to recover a balance due on a note of the defendant. The defendant pleaded the general issue, and that “he paid the note to one J. S. Edwards, the petitioner's agent.” There was judgment for the plaintiff and the defendant appealed.
    The appeal must be dismissed, this court having no jurisdiction of it.
    The constitution of the state declares, that the supreme court shall have appellate jurisdiction only, which jurisdiction shall extend to all civil cases, when the matter in dispute shall exceed the sum of three hundred dollars.
    The sum claimed in the petition was only three hundred dollars, of course this court has no jurisdiction, and the appeal ought to be dismissed.
    The execution of the note is proven by the testimony of M‘Nutt.
    The defendant alleges, that he had paid the full amount of the note to one John S. Edwards, and to prove it, he produces the receipt of Edwards, dated the 28th September, 1816, at Natchez: 1. No payment to Edwards was good. 2. At the time of the alleged payment, Edwards had not the note in his possession, nor was he authorised to receive payment.
    I. No principle in law is clearer, than that which declares no person shall collect the money of an other, without his authority. The defendant relies upon two circumstances to shew that Edwards was the agent of the petitioner; the one, that the note upon which this suit was brought, was found amongst his papers; and the other, that Thomas Welsh gave the note to Edwards, as appears by his receipt (the only evidence of the fact) upon the 25th of August, 1817, nearly one year after the defendant shews he gave the money to Edwards.
    The court cannot infer from that circumstance, that Edwards was authorised to collect the money, or that the note belonged to him. By refering to the note, it will be seen that it is payable alone to Martha Welsh, or her order; and that the note never was endorsed by her, or assigned over to any other person; of course, it did not belong to Edwards as his property; and as to its being found in his possession, it cannot be construed into an agency to collect, without some proof that it was delivered to Edwards by Martha Welsh, for that purpose; and without Edwards or the defendant can shew that he was authorised to collect the money by the petitioner, this court will presume, that he was in possession of the note illegally. For example, if A. give his note payable to B. or order, for $1000. and afterwards D. presents it for payment, without endorsement or authority to collect, and A. pays it, cannot B. recover the money from A., although he had paid it to D.? He certainly can, but it would be the contrary if the note had been made payable to B. or bearer. In support of the above principles, I refer the court to Pothier, Traite, du contrat de change, nos. 164, 168. 4 Bacon's Abridg. tit. merchant. 703, no. 4. 1 Espinasse’s Nisi Prius. Title Assumption. Chitty on Bills, American, edition, 97.
    It is clear from these authorities, that the property of the note is yet in the petitioner, and that J. S. Edwards had no right to it.— We will now examine if he had any authority as agent. The defendant has proven no agency from Martha Welsh, the petitioner, and the note being amongst. Edwards’ papers, is no proof thereof; for Edwards might have obtained it illegally, or found it, or it might have been delivered to him by a person who came improperly by it.
    But the defendant contends, that Thomas Welsh gave him the note to collect. I will ask, where is the authority of Thomas Welsh? It is not proven that he had any right to the note, or that he was agent of the petitioner; Martha Welsh, the petitioner, and Thomas Welsh, are two different persons; and upon this ground the defendant cannot succeed: for Thomas Welsh, who had no right to the note, either as his property, or as agent of Martha Welsh, could not transfer any power to Edwards; and the defendant before he paid it, if ever he did, ought to have first satisfied himself that Edwards was duly authorised to receive payment, and if he made the payment, it was at his own risk.
    II. The receipt of Edwards to the defendant, is dated upon the 28th of September, 1816, and Edwards’ receipt of the note from Thomas Welsh, is shewn to the court, to prove that even Thomas Welsh (who, it appears, had no right to do what he did) did not authorise Edwards to collect had the note before the 25th of August, 1817, nearly one year after defendant says he paid the money.—Turn to documents and receipts filed in the suit, and referred to in statement of facts, so that it clearly appears, that at the time the money is said to have been paid at Natchez, Edwards had no power from any person to collect it; and having no power at that time to receive, the payment then made was unauthorised; the defendant did it at his own peril, upon the word alone of Edwards; that the note was his, and he must abide by the consequences; and if he really did make the payment to Edwards, he must be left to his action against Edwards, or his representatives, to recover back the money he had paid through error. But my client cannot be made the victim.
    Brownson, for the defendant.
    The note on which this suit is brought, is dated on the 11th day of December, 1815, and payable on the 1st day of March following. The defendant pleads payment, and shews against the note, a receipt signed by John S. Edwards. The receipt is dated 28th of September, 1816, for six hundred dollars, and the interest, and appears to have been given in discharge of the note.
    The first question to be decided is, whether this court has jurisdiction of this appeal ? The words of the constitution are, that the supreme court shall have appellate jurisdiction only, which jurisdiction shall extend to all civil cases, when the matter in dispute shall exceed the sum of three hundred dollars. 1 Martin's Dig. 102.
    It is only necessary to enquire what is in dispute between the parties in this case ? First—there is the sum of three hundred dollars. Second—there is the interest upon that amount, from the 1st of March, 1816, until paid, which was nearly one hundred and fifty dollars at the time judgment was rendered in the district court.
    So, that principal and interest amounted, at that time, to about four hundred and fifty dollars. It cannot be necessary, I think, to pursue this point any farther.
    It is again contended, by the petitioner's counsel, that the payment, to Edwards cannot be held good, unless we shew that he was authorised to receive it by Martha Welsh, to whom the note belonged.
    We think we have sufficiently established that point. See statement of facts. If there is no positive evidence, it does not necessarily follow, that it is not proven. We are oftentimes obliged to content ourselves with evidence which is much less than positive; and sometimes circumstances speak a language even more unerring than positive testimony. Let us see if there is not, at least, a violent presumption that Edwards was authorised to receive the money from Brown, at the time the receipt was given to him; or, if not then authorised, whether Edwards' acts have not since been virtually ratified by the petitioner.
    Smith swears, that Edwards said at the time the receipt was given to Brown, that the note was in his, Edwards' trunk, at Natchitoches; and that he was sorry he had not brought it with him. What the agent says, when acting for another, is taken as part of the res gestœ, and may be received in evidence against the principal. Swift's Evidence, 127. 1 Esp. 142.
    It is proven by Rogers, that Thomas Welsh admitted, that he had received from Edwards three hundred dollars on the note, which also appears from the endorsement, dated 5th May, 1816. This circumstance increases the probability, that Edwards might be authorised to collect the balance from Brown. At all events, it furnishes a motive which might have influenced the petitioner in delivering the note to Edwards.
    I feel no disposition to controvert the doctrine invoked by the petitioner’s counsel, that no person shall collect the money of an other without his authority. I am arguing to shew, that in this case, such an authority existed. The case supposed, and the authorities cited by him, only go to shew, that when the fact of want of authority is clearly established, as when it is proven that the note had been stolen, or that it had been lost, and subsequently found by a person who should present it for payment, and actually receive payment upon it, that in all such cases, the payment would not be good. But surely there can he no analogy between such cases and this. Here, there is no proof that the note was either lost or stolen. No such thing is even pretended. It is said, to be sure, that there is no proof that the note was delivered to Edwards by Martha Welsh, and therefore, the court will presume that he possessed it illegally. But I can scarcely conceive why the court should adopt such a forced presumption, especially as there is strong circumstancial, if not positive evidence, to the contrary. It cannot be contended, that Thomas Welsh was not authorised to act for Martha Welsh. Indeed, the name of Martha Welsh is no where seen but in the note. It is Thomas Welsh who talks, ami Thomas Welsh who acts. He took the receipt from Edwards. He endorsed the three hundred dollars on the back of the note, a payment recognised to be good in the petition itself, and consequently an admission that he was authorised to receive.
    But it is said, the receipt given by Edwards to Thomas Welsh, dated 25th of August, 1817, is proof that the former could not have been authorised to collect before that time. I do not see that such an inference is inevitable. We may conjecture, that when the note was first handed over to Edwards, a receipt was not exacted, and that afterwards, Welsh finding it would probably be a long time before the note would be paid, thought it advisable to take one. This was not a commercial transaction, in which we must expect great exactitude. On the contrary, it was a transaction between men in the country, where a very little experience will teach us not to be surprised at the greatest apparent contradictions, arising out of affairs loosely and improvidently managed.
    As to the letter from Brown to captain Dill, it only shews that Brown was owing Thomas Welsh, and that he wished Welsh to get from Edwards the balance coming to him. We have no means of ascertaining whether this letter related to the note on which this suit is brought. But supposing it did, it strengthens two points for the defendant. First — it shews that Thomas Welsh was, on all hands, considered as either the agent to collect the note, or as its proprietor. Second — it strenghtens the probability that an arrangement had been entered into for Edwards to pay the note; an arrangement, it would seem, which had been made known to Welsh; because Welsh is merely requested to receive the balance of his money, as captain Edwards comes up; an expression which would be wholly unintelligible without a knowlege of some previous circumstance to give it a meaning. Had it been information communicated for the first time, Brown would probably have been more explicit and circumstantial.
    But secondly, supposing the court should think that there is not sufficient evidence that Edwards was, in fact, authorised to collect the note at the time he gave the receipt to Brown; still we contend, that, his subsequently procuring the note, although for collection, ratified the payment previously made to him, and rendered it good. Pothier, Traité des obligations, part. 1, chap. 1, sect. 1, art. 5. n. 75 says, Si je contracte au nom d'une personne qui ne m'avoit point donné de procuration, sa ratification la fera pareillement reputer comme ayaut contracté elle meme par mon ministére ; car la ratification équipolle a prócuration ; ratihabitio mandato comparatur.
    
    What then were the engagements entered into by Edwards, in the receipt given to Brown ? Was it not one, that he was authorised by Martha Welsh to receive payment of the note ; suppose that that authority was in fact wanting, the consequence would be, that the engagement must be considered defective, as it regards the principal, until ratified, by giving to his agent the authority required.
    
      The moment that authority is given, the engagement of the agent becomes complete, and the rights of Brown must be considered as perfected. Let me ask, could Edwards, in consequence of the authority subsequently received, have had a right to collect the note a second time of Brown ? On the contrary, had not Brown a right to demand the note of Edwards, the moment it passed into his hands? And if Edwards failed to deliver it up, can that circumstance have revived any former right in favour of the petitioner, which had been once extinguished ? Brown ought not to be responsible for the fault of Edwards, in not paying over the money. The petitioner seems to have been content that Edwards should receive it, and was willing to take the risk of his misapplying it. It was also in the power of the petitioner to have recovered the money from Edwards, but it was not in the power of Brown to have done it. Martha Welsh has also now a claim against Edwards’ succession for the money, but Brown has none, unless the result of this suit should give him one.
    Baldwin, in reply.
    It seems to me, that the defendant’s counsel is in an error, in considering Edwards as an agent at the time he gave the receipt to Brown; and that his declaration, that he had the note in his trunk, at Natchitoches, was to be taken as evidence of the fact. At that time he was not agent, unless the note was in truth, in his possession, (for he relies upon no other authority) and his declaring that he had it, is only declaring that he had a right to receive the money, which is the question in dispute. Agency must be proved by some better testimony than the naked declarations of him who pretends to be agent. Admit the rule, that a man can make himself an agent by his own declaration, then any one can become so, for any purpose, at his will and pleasure; a verbal power may be given, but it must be proven. Civil Code, 422, art. 6. Edwards’ assertion then, that he had the note in his possession, is no evidence for Brown.
    The testimony of Rogers does not prove the agency at the time Edwards gave the receipt to Brown, as this conversation was some time in the year 1818, and only proves what the credit on it now admits.
    The defendant’s counsel must rely on the ratification of the act of Edwards, in receiving the money by Welsh, putting the note in hands to collect, and has cited Pothier. It seems to me that this doctrine does not apply. If A. acts for B., and B. ratifies, the act is complete. This is correct, but before A. ratifies, he is made acquainted with what B. has done, which was not the case here; Edwards received the money, or more correctly speaking, he gave the receipt when the note was not in his possession, and when he had no authority to receive. He did not upon this apply to to Welsh to ratify what he had done, and make arrangement with him for payment of the sum collected, but took the note for collection. Now, it is clear, that no previous act was ratified ; no application was made for that purpose; it was a new act on the part of both; one gave and the other received the note for collection. Would Welsh have done this if he had known that the money was already in Edwards’ hands ? If this had been communicated to Welsh, the transaction would have changed its character, from a promise to collect, to a promise to pay what had been collected.
    It is further said, that the delivering of the note to Edwards did not enable him to collect the money of Brown, as he had already received it.
    I am not prepared to admit this to be correct, though I do not consider it important. The question is, whether the payment at the time it was made was a discharge of the obligation ? It is clear to me that it was not. How then can any act on the part of Welsh, less than a ratification, have that effect ?
    If he had delivered the note to any other person, the payment to Edwards would not have operated as an extinguishment. On the 25th of August, 1817, he received the note to collect or return. He did not collect it (the defendant says he had already done that) but he did what was equivalent, or his representative did it for him; he returned the note. If Brown had taken up the note from Edwards, he would have some reason to say that the right of recovery against him was lost, as a payment made to him, who holds the evidence of the debt, is good, though that made to a person who may by some possibility afterwards obtain it, is not. Now, it seems clear, and the evidence is certainly very strong in favor of the conclusion, that the note came to Edwards’ hands on the day of the date of his receipt; nothing contradicts it, but the declaration of Edwards, which is not so strong as his writing, even if there was no doubt of his having made the declaration, which depends upon secondary testimony, to wit, the oath of a witness. It would then be raising a presumption without any foundation, to suppose that he had the note in his possession when he gave the receipt to Brown, and argue from that presumption against the written voucher.
    To say that the receipt of Edwards to Brown, should lie dormant and inoperative from the 28th of September, 1816, to the 25th of August, 1817, and then spring into full force and effect, so as to extinguish the date by operation of law, without a delivery of the note to Brown, is reasoning very strongly in his favor. But I scarcely know what to call, that operation of the mind, which would bring it to a conclusion, that this effect should be produced, notwithstanding the note should be redelivered to Welsh, without any alteration, and in its original condition. The silent operation of law can do a great deal, though it cannot do this much.
    Among the different modes of extinguishing debts, one is mentioned as the operation of law, to wit, confusion (and no other is recollected.) But here the two questions of debtor and creditor were not united.
    Edwards was never for one moment the proprietor of the note; so that his situation is different from that of a person who sells a tract of land, and afterwards acquires a title— suppose Edwards had returned this note to Welsh before he left the house, would the previous receipt from Edwards to Brown have prevented Welsh from recovering the debt ? It certainly would not; shall the period of one or two months then have this effect ? Payment made bonafide to him who is in the possession of the voucher of the credit, is valid. Civil Code, 288, art. 140. But a judgment cannot be good, made only in anticipation that the voucher may come to the hands or possession of him who receives. It is contended by the defendant, that Welsh can recover the sum of the estate of Edwards. Suppose on such a suit, it should be made appear, that the receipt relied on by the defendant, was a forgery, which I have strong reasons to believe is the truth; of whom then would the money be obtained ? This judgment would preclude a second demand of Brown.
    
      It is not a good argument to say, that if Edwards could not recover the money of Brown, that Welsh cannot. Their situations are different; while the note was in Edwards’ hands, he could bona fide receive payment: or having bona fide received the amount before the note came to his hands, for the purpose of applying it to that purpose; when the note was received he would be bound to give it that application; and when it was thus applied bona fide it might extinguish the debt as to him, for he would be bound in equity and good conscience to make that application. This principle does not apply to Welsh. He is entitled to the money, but he cannot, the defendant says, recover it of him, because he holds the receipt of Edwards. He cannot recover it of the estate of Edwards, because the receipt is a forgery— a sad predicament for a plaintiff to be in.
    The real and true question for the court to determine is, who ought to resort to the estate of Edwards ? Brown, who (paid if it is true) when Edwards had no right to receive, or Welsh, who cannot recover if the receipt is forged. But how can Welsh resort to the estate of Edwards when one of the conditions of the receipt is fulfilled, to wit, the note returned ? For it is Welsh who brings suit against Brown, upon the note.
    The case in 7 Martin, 247, is distinct from this. There the amount reached the hands of the only person authorised to receive it.—Here the amount was received by one person a long time before the voucher came to his hands, which he did not apply as was intended; but re-delivered the same voucher to the owner, who never did part with his property, but barely parted with the possession which he regained. It seems to me that Edwards was Brown’s agent, in receiving the amount of the note to take it up, and that he failed in his undertaking, and to discharge the duties of his agency. Brown has an action for money had and received to his use, though Welsh has not. If the latter was to bring suit, the representatives would answer, that the note was returned, and bore a recovery.
    I have said, that if Welsh, as soon as he had delivered the note to Edwards, and taken his receipt, had changed his mind, and retained this note, that Brown might in vain, prove this fact, in opposition to the judicial demand, which I believe will be admitted to be correct; and yet, if the principle of the operation of law is admitted to apply to the case, the plea would be good; and it necessarily follows, that the note was discharged as to Brown, the very moment it was delivered to Edwards, or it is not at this time.
   Martin, J.

This suit was brought on the defendant's promissory note for $600, payable to the plaintiff. on the 1st of March, 1816.

The defendant pleaded the general issue and payment, averring it had been given to one Edwards for collection, to whom the defendant paid it, on the 28th of March, 1816, at Natchez, and took his receipt. Edwards saving the note was in his trunk, at Natchitoches; that the note was found among Edwards' paper, after his death, in the fall of 1817, at New-Orleans.

The district court gave judgment for the plaintiff, "the law and evidence being in his favor." and the defendant appealed.

The statement of facts shews, that the plaintiff gave the note in evidence, and proved its execution. A receipt for $300, paid on the 5th of May, 1816, was on the back of it, subscribed T. Welsh.

The defendant gave in evidence, Edwards' receipt, and the deposition of Smith and Rogers.

Smith, after proving Edwards’ signature at the foot of the receipt, deposed that he heard him say to the defendant, that the note was in his trunk at Natchitoches, and he was sorry he had not brought it.

Rogers deposed, he had heard T. Welsh tell the defendant, some time in 1818, that part of the note had been paid him by Edwards, he thinks about $300, but the rest was due; that the note had been given to Edwards for collection, and was lost.

It was admitted, that it was found among Edwards’ papers, after his death, at New-Orleans, in the fall of 1817.

The plaintiff, to rebut the defendant’s evidence, read Edwards’ receipt, on the 25th of August, 1817, acknowledging that the note was given him to collect its amount; and a letter of the defendant to one Dill, in which are the following expressions: “I wish you would inform T. Welsh, that I wish he would sue Kennedy for the mule, and when it is recovered, to keep it himself for the delay of the payment of his money. It will be out of my power to return very soon, and I wish to receive the balance of his money when Edwards comes up.” This letter is of May, 23, 1816.

The defendant’s counsel has prayed, that the appeal be dismissed for want of jurisdiction in this court. The note is for $600, with interest, at 10 per cent. till paid. $300 are claimed of the principal, and interest for a considerable time, on the whole sum and the balance; it is therefore clear, that the plaintiff’s demand exceeds the sum of $300 by this interest; and that, consequently, this court has jurisdiction.

The plea of the general issue is supported.

The defendant has produced Edwards’ receipt for the whole sum; but he has not shewn that Edwards, when he gave this receipt, had authority to receive payment. He has shewn that the note was given to Edwards for collection, by one T. Welsh; but has not shewn that this was before the date of Edwards’ receipt. The plaintiff, on the contrary, has shewn that Edwards gave a receipt therefor, to T. Welsh, about eleven months after he received payment from the defendant.

Who this T. Welsh was, and his authority to act as the plaintiff's agent, does not appear; but as the plaintiff has produced the receipt which he took from Edward for the note, and the receipt for $300, which he endorsed on the note, must be taken to have been written with his consent; I conclude that he is sufficiently shewn to have been the plaintiff’s agent, and this does not appear to be denied, but rather admitted in the argument of the counsel.

As the authority of Edwards to receive payment for the plaintiff, does not appear, it must be presumed not to have existed at the time the defendant took his receipt. It is true, it is in evidence, that he paid the $300 which T. Welsh endorsed on the note; but this circumstance does not establish, that he had received that sum as the agent of the plaintiff. any more than that he undertook to convey and pay it for the defendant.

Does the authority to collect, given in 1817, amount to a ratification of the payment made in 1816, by the defendant to Edwards ? Certainly not. It does not appear, that this payment was known to Welsh when he gave the note to Edwards. Iniquum est perimi de pacto id de quo cogitatum non est. Indeed the delivery of the note for collection, would rather go to prove a disavowal of that payment. For to what purpose would be the authority to collect a sum already paid ?

The declaration of Edwards, that he had the note in his trunk at Natchitoches, is no evidence against the plaintiff, as there does not appear that there was any privity between him and Edwards.

Edwards' receipt to the defendant shews, that he intended to receive, and the defendant to pay, a sum due to Edwards, in his own right, as the plaintiff's assignee; for he gives the receipt in his own name, not as agent of the plaintiff in receiving payment, nor of the defendant, in receiving a sum which was intended to be paid through him to the plaintiff.

The receipt of this money, under a suggestion (which, as it is not proven, we must consider untrue) that he was the assignee, or proprietor of the note, rendered him liable to the present defendant's action to recover the money, Has the claim of the defendant been marred, suspended, or destroyed by any thing done by the plaintiff, or T. Welsh, her agent ?

The authority given to Edwards to collect, could not have availed him, if the defendant had brought his action for money had and received; even if Edwards had shewn payment to the plaintiff, unless he could have shewn, which does not appear, that he received the money from the defendant, to convey it to the plaintiff; or that he had authority, at the time he received it, he could not have resisted the present defendant’s claim.

Without such authority, either from the plaintiff to receive, or from the defendant to pay over—payment to the plaintiff could be of no avail; for the present defendant, shewing that he paid, thro’ error, the money must be considered as his own still, and rightly due him by Edwards, who could no more avail himself of payment to the present plaintiff, than of payment to any other real or pretended creditor of the present defendant.

I conclude, we ought to affirm the judgment of the district court with costs.

Mathews, J.

I concur in this opinion, for the reasons therein adduced, believing that the case cannot be better explained by any additional remarks.

It is therefore ordered adjudged and creed, that the judgment of the district court be affirmed with costs.  