Majority
Headnote
Where a defendant is sued for brokerage, and pays the amount of the commissions into court, and interpleads two rival claimants fcr the fund, the question to be determined between such claimants is which of the two is entitled to the fund. Whether the agreement under which the plaintiff beeame entitled to the commissions be open to the objection of illegality or inmorality, is one which the party paying the fund into court alono can raise, because, if such a transaction injures any one, it is the person paying the money; and where such person does not complain, but waives such defense by admitting his liability, and paying the amount of the claim into court to be contested for by the parties to the record, and the question of illegality as between the plaintiff and his employer may be considered out of the case.The plaintiffs and the defendant herein cSiimed §378.75 for commissions from the George F. Blake Manufacturing Company, a corporation doing business under that name.
The plaintiffs thereupon sued the Blake Manufacturing Company, and the company,.upon paying the amount claimed into coiirt, was discharged as a party from the record on an application for interpleader, under the Code, upon the ground that while the company owed the commissions, it was unable to determine whether the plaintiffs or Louis Sahm were entitled' to them, and Sahm was substituted as defend
The main question litigated upon the trial,—i. e., whether the plaintiffs or Sahm were entitled, to the commissions,—turned upon disputed questions of fact, which were settled by the verdict of the jury in the plaintiffs’ favor. We do not propose to rehearse the details of this mixed transaction, as they appear in tlie evidence, it is sufficient to refer to the same as printed in the case, and to say that the transaction, as therein described by plaintiffs’ witnesses, entitled them, in law, to the commissions, and that this evidence must, in view of the finding of the jury, be taken as true, and as determining the rights of the rival claimants to the fund in court.
Whether the agreement under which the plaintiffs became entitled to the commissions be open to the ob-. jection of illegality or immorality, raised upon the argument, is one which the Blake Manufacturing Company alone could raise, because, if the transaction injured any one, it was that corporation, and it does not complain of the injury, on the contrary, has expressly waived it by admitting its liability, and by'paying the amount claimed into court to be contested for by the present parties to the record ; so that question may be considered out of the case. (For illustrations of the rule, see Bigelow on Torts, 161, 846; Marshall v. Joy, 17 Vt. 546 ; Gordon v. Jeffery, 2 Leigh, 410 ; Hutchins v. Hutchins, 7 Hill, 104 ; Leffer v. Nuttman, 35 Ind.
„ We have found nothing in the exceptions which requires a new trial. The facts found establish the plaintiffs’ right of recovery, and the judgment entered upon the verdict must be affirmed, with costs.
Affirmed by the Hew York common pleas, general term.
Cases cited
- Comstock v. Ames 1 Abb. Ct. App. 411 p. 417
- Adams v. Sage 28 N. Y. 103 p. 417