Martin v. Matthews — 42 N.Y. St. Rep. 567

Majority

p. 567

George W. Martin et al., Resp’ts, v. James C. Matthews et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Payment—Allowance by agent of his own note.

One B; who was an agent of the plaintiffs sold goods to defendants and allowed in part payment therefor his own note previously given to them. Held, that the transaction was unauthorized and illegal, and constituted no payment; that an agent cannot discharge an indebtedness without actual payment.

p. 568

Appeal from, judgment in favor of plaintiffs, entered on verdict directed by the court.

George S. Hastings, for app’lts; J. Stewart Boss, for resp’ts.

In October, 1889, one Clark Balcom bought a horse and wagon of Frank A. Pierson, one of the defendants. A note was given for the whole amount. The note was at once transferred to the defendants and discounted for their benefit. It was partly paid by Balcom from time to time and renewed, and finally was reduced to $275.

In December, 1889, Balcom transferred property to the plaintiffs for a past indebtedness and took employment under them in the same business which he had been conducting and at the same place, the plaintiffs furnishing the stock. Balcom sold plaintiffs’ property to the defendants, and allowed his own note as part payment of the bill for the goods thus sold belonging to plaintiffs. The transaction was wholly unauthorized and illegal and constituted no payment. The proof as to the agency of Balcom and that his sign continued over the door has no relevancy under the facts of this case. The defendants got plaintiffs’ property and have not paid for it. An agent cannot discharge without actual payment. De Mets v. Dagron, 53 N. Y., 635 .

The judgment should, therefore, be affirmed, with costs.

Dykmah and Pratt, J.J., concur.