Prochowick v. Boyd — 15 N.Y. St. Rep. 809

Majority

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Adolph Prochowick et al., App’lts, v. Eugene S. Boyd et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Principal and agent—Payments to general agent are payments to. PRINCIPAL.

The plaintiffs made a contract to furnish the defendant work and ma

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terials; the contract on their part being made and signed by their agent. This agent was in their employ and acted as their representative and superintendent, and signed for them on another contract with other parties. The defendants, in payment for the work and materials, gave the agent a check payable to the order of the plaintiffs’ company. The agent endorsed the name of the plaintiffs on the check, and put his own under that of his principals as he had done in signing the contracts. At his request the defendants endorsed the check so as to enable him to get the money on it. The agent got the money on the check and failed to turn over part of it to the plaintiffs. This action was brought to recover compensation for the work and materials furnished under the contract. Held, that the evidence was sufficient to sustain a finding that the plaintiffs, by their actions, constituted the agent a general one; that the defendants could accredit him to the bank as a person to whom they were authorized to pay money as to the plaintiffs themselves, and that the subsequent misappropriation of the money did not invalidate the payment.

Appeal from a judgment entered upon a verdict of a jury, and from a motion denying a new trial.

Bice & Bijus, for app’lts; David Barnett, for resp’ts.

—The defense in this case under the verdict of the jury rests on a good foundation. The plaintiff, who did business under the name of the East River Iron Works, made a contract for work and materials with the defendants. The contract upon plaintiff’s part was made through the agency of and was signed by Charles Sidney, for the East River Iron Company. The contract was delivered to plaintiffs by Sidney; Sidney collected all the moneys on the contract. He returned some, but not all to the plaintiffs. Sidney was in plaintiff’s employment, and acted as representative and superintendent, and' signed for the iron works on another contract, and with other parties. When Sidney collected the money, the defendants made him a check, payable to the order of the East River Iron W orks. Sidney indorsed the name of the plaintiffs, and put his own name on the check under that of his principal, as he had done before in signing contracts, and requested the defendants to indorse the same, so as to enable him, Sidney, to get the money without going to New York.

The defendants did so, and Sidney got the money and kept a part of it. The defense is, that assuming_ Sidney-had the power to contract for the plaintiffs, the indorsement of the check by defendants must rest upon a real authority of Sidney to indorse checks for the plaintiff. This is the rule when there is authority to collect only. The evidence enabled the jury to give Sidney large powers by which the defendants were justified in paying cash to Sidney, or in giving him a check payable to him, or in treating with him as the plaintiff, alter ego. They could accredit him to the bank on this theory as a person to yvhom they were authorized to pay money as to the plaint

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iffs themselves. The general agency carried with it in this case a power to sign for the principal, the real power was not material. The case in this respect is different from Bernheimer v. Herrman, 44 Hun, 110 . There a check was given to a bookkeeper, who was authorized to receive and receipt for bills. The check was payable to the order of the proprietor, and the bookkeeper forged his name and applied the money to his own use. If the proof had justified the bookkeeper in signing the name of his principal, the misappropriation alone would not have made invalid the payment. The case was tried on the evidence applicable to this case. The question was put to the jury, whether under the evidence the defendants were justified in treating Sidney as the East River Iron Works, generally. The jury so found, and under this verdict the indorsement of the check was the indorsement in legal effect of the plaintiffs themselves.

Dykman and Pratt, JJ., concur.