p. 637Eliza Nearing, App'lt, v. Oliver B. Brown, Resp’t.(Supreme Court, General Term, Third Department,Filed September 20, 1887.)Headnote
Money had and keceiveb—Liability of agent fob—Collecting fob ANOTHER.The plaintiff attended a sick woman as nurse, and claims that she was employed by the defendant. In the complaint, she sues on the contract and also for money had and received. It seems that the defendant, on the death of the patient, proved the plaintiff’s claim against the estate, and obtained the amount due. Held, that though the original contract as claimed was outlawed by the expiration of six years, yet that these facts proven established the second cause of action, and the defendant was liable, as agent, for the amount.
Appeal from a judgment of the county court of Sullivan county, reversing a judgment rendered by a justice of the peace, upon the verdict of a jury, with costs.
The action was upon contract to recover, as stated in the complaint, for labor performed for defendant, and moneys received by defendant for plaintiff’s use and benefit and which he neglected and refused to pay over. The answer was a general denial, the statute of limitations, settlement and satisfaction, and counterclaim, for labor performed, money loaned and expended, and goods sold and delivered. The appeal was upon the questions of law, and no new trial was had in county court.
The plaintiff gave evidence on the trial tending to show defendant employed her to take care of a woman, who was then sick, and afterwards died; that she did take care of the sick woman for ten weeks, at the agreed price of two dollars per week; that after the death of the sick woman, defendant called upon plaintiff, ascertained what she claimed for her work, and undertook to and did make a bill for this and other claims of his own, and present it to the executors of the estate of the deceased woman, and collect and receive the money, twenty dollars, which he had never paid over to plaintiff. This evidence was contradicted by evidence given on the part of the defendant, who admitted the ten weeks work was performed, but denied he hired or agreed to pay plaintiff himself, or that he ever presented any bill for such labor to the executors, or received any money thereon. These questions of fact were contested, and the jury, before which a trial was had, rendered a verdict for plaintiff, which was the judgment originally appealed from.
T F, Bush, for app’lt; James L Curtis, for deft.
The county judge wrote no opinion, and we can only judge as to Ms reasons for reversal of the judgment rendered by the justice by the position assumed by counsel for respondent upon this appeal. We assume the
p. 638ground was the statute of limitations. It is conceded that more than six years had elapsed when the action was brought since the original employment of plaintiff by the defendant, and the performance of the labor, while six years had not elapsed since the money was received by the defendant from the executors of the deceased woman’s estate, which plaintiff claims was collected and received by defendant for her and was her money. So that if the recovery was had against defendant upon the original contract of employment, then the judgment was erroneous and was properly reversed.
The action as brought, however, enabled plaintiff to press both claims as made by her; first, that defendant was hable upon his original contract, and if she failed in that, then that defendant undertook to collect the money for her from that estate; he made the claim; the executors admitted its correctness and paid money to defendant, and she should be allowed to recover it as had and received for her. She could not maintain her claim upon the original contract because of the statute of limitations, and very likely because it was doubtful whether defendant’s employment was anything more than an employment acting as agent for and in behalf of the sick woman. However that may be, when he undertook to and did collect the money for her services from the estate, he was properly held liable therefor to the plaintiff. We must assume this was the basis of her right to recover, as determined by the jury. There was evidence to sustain the verdict upon this basis, and the findings of the jury, upon the conflicting evidence offered by the parties, should not have been disturbed by the county court. We think the judgment rendered in justice court was-right, and should not have been reversed.
The judgment of the county court should be reversed, with costs, and that of the justice affirmed.
Learned, P. J., and Lardón, J., concur.