Nicolet's administrator v. Pillot — 24 Wend. 240

Majority

p. 240

Nicolet’s administrator vs. Pillot & Le Barbier.

Headnote

Where an agent was directed by his principal to obtain securities for the payment of protested notes, and to hand them over when obtained to certain creditors of the principal, and the agent not having obtained new securities handed over the notes to the creditors, it was held that their title to the notes was good, and that an action of trover would not lie against them at the suit of the administrator of the principal, notwithstanding that the notes were delivered over after the death of the principal; the death of the principal under the circumstances of the case being deemed not a revocation of the power of the agent.

Error from the superior court of the city of Ne'w-York. Benjamin Clapp, administrator, with the will annexed, of *Theodore [ *241 ] Nicolet deceased, brought an action of trover against Pillot and Le Barbier for four promissory notes amounting together to the sum of $7, 473,13, under the following circumstances : Nicolet, a merchant residing at New-Orleans, had, through his agent It. Braem, oí New-York, purchased of the house of Mansing, Munroe King, of New-York, a number of promissory notes payable at future days : one, a note for $772,87, given by Thomas Graves & Co. payable at Jackson, in Mississippi, on the 23d January, 1837, and three others payable at Vicksburg, on lsi April, 15th May and and 24th May, 1837, which notes were endorsed by Lansing, Munroe $• King. On 12th April, 1837, Braem received a letter from Nicolet dated 2d April, enclosing the note of T. Graves & Co. protested for non-payment, desiring him to claim the amount and place it to his (Nicolet’s) credit in account with Pillott Le Barbier. On the first May, 1837, Braem received another letter dated 22d April, 1837, from Nicolet, who transacted business under the name of Th. Nicolet Sf Co., in which he says, “ We flatter ourselves that by this time you have succeeded to obtain good guaranties from Messrs. Lansing, Munroe and King, and now request you hereby to hand over for our account to Messrs. Pillot and Le Barbier of your city,” and adds that he supposed that Braem was already in funds for the protest-' ed note of T. Graves & Co. and directed him to hand over the amount to Pillot Le Barbier. To which letter was attached a P. S. in these words : “ Our understanding is that you shall hand over without any delay whatever, to Messrs. Pillot Sf Le Barbier for our account with them, all the guaranties obtained from Messrs. Lansing, Munroe and King.” Braem also received from Nicolet a letter dated 25th April, 1837, in which, after mentioning that a certain house in Natches declined to take up T. Graves & Go’s note, he says, “ We consequently confirm you what we on the 22d inst. had the honor to mention in relation to that note, and reiterate our entreaty to hand over for our account, to Messrs. P. & Le B. all what you may have been able to get possession of, as guarantees in this unfortunate transaction.” *When notice of the protest of the note of T. Graves & [ *242 ] Co. was received, Braem called upon Messrs. Lansing, Munroe

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& King to pay it or give good securities or guaranties for it, and such other of the notes as might be protested, and they promised to give such securities or guaranties as soon as the protested notes should come on from the south. On receipt of Nicolet’s letter of 22d April, Braem again called upon the firm of Lansing, Munroe & King, who renewed their promise to consummate the arrangement as to the guaranties for such of the notes as had been or might be regularly protested, whenever the same should be delivered to them. The letter from Nicolet to Braem, of 22d April, was enclosed in a letter from Nicolet to Pillot & Le Barbier, also dated 22d April, in these words : “ Enclosed is a letter for Mr. Braem, of your city, by which we order him to place in your hands from account, all the securities which he may obtain or shall have already obtained from Messrs. Lansing, Munroe & King of your place, on account of an exchange transaction we have had with them.” Pillot, one of the firm, delivered to Braem the letter directed to him, and it was then agreed by Braem that he would hand over to Pillot & Le Barbier the securities or guaranties referred to in Nicolet’s letter as soon as they were received. On 2d May, Braem wrote Nicolet, acknowledging the receipt of the letter of 22d April, and promising to comply with its re-, quirements. On the third day of May, Nicolet died at New-Orleans, and having left a last will and testament, his executor, T. B. Blanchard, on the 5th May, proved the will, and on the 16th May, letters testamentary were granted to the executor. On 23d May, Blanchard, wrote Braem, enclosing to him the four notes in question in this case, and desiring him to obtain payment of the same from Messrs. Lansing, Munroe & King : this letter was received by Braem on the sixth day of June. On the 27th May, Blanchard again wrote to Braem, informing him that Messrs. Pillot & Le Barbier had written to him demanding the fulfilment of the promise of Nicolet concerning the notes forwarded on the 23d May, and then observ- [ *243 ] ing *that his duty as administrator of the estate would not permit him to accede to such demand, he being bound to keep all the assets of the estate for the benefit of the creditors at large, he forbade him to part with any values : this letter was received by Braem by the express mail on the fifth day of June. On the tenth day of June, not having received any new securities or guaranties from Messrs. Lansing, Munroe & King, Braem delivered the notes in question to Messrs. Pillot §• Le Bar-bier, It was admitted that Nicolet, at the time of his decease, was indebted to the defendants in a sum exceeding' $30,000. The presiding judge charged the jury that the death of Nicolet did not vary or affect the rights the defendants possessed in the notes in controversy ; and that the delivery of the notes by Braem to the defendants was, under the circumstances, a substantial compliance with the instructions of Nicolet. To which charge the plaintiff’s counsel excepted. The jury found a verdict for the defendants,,

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, upon which judgment was entered. The plaintiff sued out a writ of error.

S. A. Foot, for the plaintiff in error,

insisted that the authority of Braem was revoked by the death of Nicolet; and if not, that Braem exceeded the power conferred upon him by delivering up the notes, when his authority only extended to delivering to the defendants such securities or guaranties as he should obtain from the endorsers of the notes.

F. B. Cutting, for the defendants in error.

By the Court,

The judgment of the court below, I am of opinion, is correct. The letters of Nicolet of 2d, 22d and 25th April, amounted, in legal effect, to a virtual assignment of the notes in question to the defendants for a valuable consideration. That was obviously the understanding and intent of all parties concerned. In respect to Nicolet, it is too frequently and earnestly expressed in his correspondence to be mistaken for a moment. He had failed to fulfil his engagements with the defendants’ house, knew they were laboring under heavy advances by reason thereof, *at a period of great commercial embarrassment, and was [ *244 ] endeavouring, with commendable sensibility and zeal, to relieve them. The notes previously bought of Lansing, Munroe and King and endorsed by them, (several of which were then due, and protested,) were, at once, turned over for that purpose, with urgent directions to his agent to procure guaranties from the endorsers. These notes Nicolet supposed might be made available securities to the defendants ; he also knew the endorsers were within their reach. They were, doubtless, the best in his power to offer at the time.

It was said on the argument, that the agent was not directed to transfer the notes, eo nomine, but only the guaranties. This is a criticism upon words without regard to the substance of the transaction. The collateral securities would be valueless, unaccompanied with an interest in the notes; it is impossible to separate them and give any legal effect to the obvious design of the parties. If the notes were paid, on presentation, by the endorsers, the money was directed to be applied on account; if not, guaranties were to be procured and delivered over. The fund appropriated was the notes—they were assigned, if any thing.

If the above view be correct, then the death of Nicolet becomes unimportant in respect to the rights of the defendants, as it could in no manner affect their title, which became perfect by the transfer of the interest in the notes. Manual delivery at the time was not essential for this purpose.

Judgment affirmed.