McDonald v. McDonald — 28 N.Y. St. Rep. 18

Majority

p. 18

Harriet McDonald, Resp’t, v. Maria McDonald, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

. Limitation—Payment—Agency.

In au action on a note the defense was the statute of limitations; the reply, payments within six years. Defendant was a member of a firm, and one R. represented her in it. He had general charge of her financial business. She never gave him any particular instructions to make these payments. He drew the money from the firm, charged it to her account and endorsed the payments on the note. Held, that defendant was bound.

Appeal from judgment in favor of plaintiff for $588.81 entered on decision of the court after trial without jury.

Maxwell Brothers, for app’lt; G. 8. Nisbet, for resp’t.

This is an action on a promissory note. It was by consent court. was statute of limitation, and the reply to that defense was that of partial payments within the six years. The court found such payments to have been made; and the only question is whether the proof justified the finding.

That proof is in substance as follows:

One Reid was the general agent and manager of defendant’s

p. 19

business. He represented her in the firm of I. C. Shuler & Co., of which she was a member. He made the payments on the note and made the endorsements of payment. His authority was that of general instructions from defendant to attend to all her financial business. The money was paid by I. C. Shuler & Co. and charged to her account. She never gave any particular instructions to make these payments. He drew this money from the firm, acting for her, and charged it up to her account.

The defendant urged on the trial that after 1880 the note, for $600, bore only six per cent, interest, and that as forty-two dollars for a year’s interest had been paid in several instances, the note had become usurious. This point does not seem to be presented on the appeal. And by the memorandum of the learned justice who tried the case it appears that payments were credited and interest charged at the rate of six per cent, after January 1, 1880. There was no usury,

The defendant also urges that Eeid is not shown to have had authority to make the payments. Here the authority is distinct and undisputed. Eeid was defendant’s general agent and manager. Ho contradictory evidence is given and the court found that she made the payment. The case of Littlefield v. Littlefield, 91 N. Y., 206 , on which defendant relies, was widely different. In that case a surety was called on by the creditor to pay. The surety said: “ Tell him (the principal) for me that he must pay,” etc. “ Wait till Ira (the principal) comes home.” The principal subsequently made a payment, of which fact he informed the surety. Thus there was no agency shown. Indeed, there could hardly be an agency, because the person who made the payment was the principal, and the person sought to be charged was surety. So that as between them the surety would not be liable to the principal for any part of the payment made by him. The principal could not be paying the surety’s money.

In the present case Eeid represented defendant in the firm. By virtue of such representation he received her money from the firm, and by his general authority to manage her business he paid a debt, in part, which she owed. These payments extended from 1878 to 1887, and there is no evidence that druing these nine years the defendant made any objection.

The judgment should be affirmed, with costs.

Lardón and Putnam, JJ., concur.