Bouck v. Wolston — 51 N.Y. St. Rep. 256

Majority

p. 256

Charles Bouck, App’lt, v. Charles M. Wolston, Resp’t.

(Supreme Court, General Term, Third Department,

Filed February 15, 1893.)

Headnote

Sale — Joint owners — Payment.

Defendant bought of B., who was working plaintiff's farm on shares, a quantity of straw, and was informed by him of ’’plaintiff’s interest therein; plaintiff, on being informed of the sale, requested defendant to pay P. but one-half the price and the other half to him, and defendant said he “ would protect his interest.” After the straw had been delivered, defendant, upon demand of P., paid him in full for all the straw. Held, that such payment was not a defense to an action by plaintiff to recover from defendant for his half of the straw.

Appeal from judgment dismissing the complaint.

Engle & Getter (Russell M. Johnston, of counsel), for app’lt; L. W. Baxter, for resp’t.

This action was brought to recover for straw sold in the fall of 1889. Defendant, on November 20, 1889, through his agent, Harvey Borst, bought of John Prell & Son, who were working plaintiff’s farm upon shares, a quantity of rye straw at ten dollars a ton. Prell informed Borst that plaintiff had a half interest therein. The latter upon being informed of said sale, consented hereto and the straw was subsequently delivered. It weighed 16 tons and 224 pounds, and, at the contract price,

p. 257

amounted to $162.69. Before such delivery plaintiff informed defendant by letter that one-half of the straw was his, and requested the defendant to pay Prell but one-half of the purchase price, and the other half to him, said plaintiff. Defendant answered plaintiff that he would protect his interest in said straw. A short time prior to the sale of said straw, the Prells advanced for the plaintiff about sixty-one dollars, the amount due from him to certain hop-pickers, plaintiff agreeing that if they would pay said hop-pickers they could take their pay out of his share of the straw money. Of the sixty-one dollars advanced by the Prells, thirty dollars had been paid back at the time of the delivery of the straw. In the baling of the straw the Prells incurred a necessary expense of $18.60, of which plaintiff was to pay half. Five dollars of this had been paid at the time of the delivery of the straw. After the straw had all been delivered, the defendant, upon demand of said John Prell, paid him in full for all the straw, plaintiff's share, as well as that of the Prells.

The evidence justified the conclusion of the referee that Mr. Bouck assented to the sale of his interest in the straw made by John and Wilson Prell to Mr. Wolston. The Prells assumed to act as agents of the plaintiff in the transaction, and he, being informed of their act, ratified the sale they made.

The plaintiff, then, through his agents, had sold and delivered to the defendant his undivided one-half interest in a quantity of rye straw at the agreed price of $81.35. It is not denied that Bouck notified Wolston on February 10, 1890, by letter that he, Bouck, was the owner of said straw and that said Wolston was not to pay the Prells therefor; or that said defendant, on February 11, 1890, in answer to said letter or notice, wrote that he would protect plaintiff’s interest in the straw; or that afterwards and on March 6, 1890, the defendant paid the whole amount due plaintiff to Mr. Prell.

It requires no argument to show that such a payment is not a defense to the action. The defendant was indebted in the sum of $81.35 to plaintiff and had been notified by the latter not to pay the debt to Mr. Prell. If the Prells as plaintiff’s agents had ever been authorized to collect or receive this money, it was competent for plaintiff at anytime to revoke such authority, and the letter which it is conceded that plaintiff wrote and defendant received was such a revocation.

It is not necessary to determine whether the conversation between Bouck and Prell in reference to the money to be advanced bjr the latter to the hop-pickers, and the subsequent advance of said money, effected an equitable assignment or a transfer of an amount due plaintiff for the straw equal to the sum advanced or not. The sum so advanced by the Prells was $31 and there was due them also $4.30 for baling the straw, in all $35.30. If defendant’s contention is correct there was due plaintiff from defendant for his interest in said straw, after deducting the amount so advanced by the Prells the sum of $46.05. I am unable to see why plaintiff was not entitled to a judgment at least for that sum.

p. 258

The agreement between plaintiff and Prell could at the most only-effect an assignment of $35.30 of the money in the hands. of defendant so due plaintiff. Wolston, being notified by Bouck not to pay Prell for his undivided one-half of the straw, could not, after such notice, make such payment to Prell as plaintiff’s agent. He could" only pay it to him because he, Prell, was the owner or legally entitled to the money. The Prells could only, under the agreement with plaintiff claimed by them, be entitled to such sum as the plaintiff owed them, viz. ; $35.30.

Without considering the other questions involved, it is clear that plaintiff was entitled to a judgment for at least $46.05, and hence the referee erred in dismissing the complaint and directing judgment for the defendant.

• The judgment should be reversed and a new trial granted, with costs to abide event

Mayham, P. J,, and Herrick, J., concur.