VOL. 2.)

MONDAY APRIL 24, 1876.

[No. 11.

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NEW YORK WEEKLY DIGEST. Several acts of bankruptcy had been

committed by Oppenheimer when Mr.

McLennan pursuaded him to confess PRINCIPAL AND AGENT.

judgment for the debt thus sent to him.

Proceedings in bankruptcy were insti. U.S. SUPREME COURT,

tuted against Oppenheimer within four Hoover, Assignee of Oppenheimer plt'f months after such confession, and were in error, v. Wise et al., deft in error.

prosecuted to a decree of bankruptcy. There an attorney is employed by a col- At the time of receiving the confession, lection agency to collect a claim, the McLennan was well aware of the insolıattorney is the agent of the collection agency, and not of the creditor. ency of Oppenheimer, and that the Error to the Supreme Court of New confession was taken in violation of the

provisions of the bankrupt act. Tork.

The money collected was remitted to This action is brought by an assignee the collection agents in New York, in bankruptcy to recover back a sum from whom he received the claim, but of money collected from the bankrupt never paid by them to Wise & Greenafter the occurrence of several acts of baum, the creditors. When the debt bankruptcy.

in question was delivered to the collecUnder the practice of the State of tion agency in New York, it was so deNew York the case was referred to a livered, as testified by one of its owners, referee, upon whose report judgment " for collection.” “Archer & Co., was entered at the special term in favor he says, “ were collection agents in New of the plaintiff. From this judgment York. I gave them no directions exan appeal was taken by the defendants cept to try their best to collect it. to the general term. Upon the hearing They told me they would send it out at the general term this judgment was (to Nebraska). I gave no other inreversed and a new trial was ordered.

structions.” “The business of Led The plaintiff appealed to the Court yard, Archer & Co. (he says) was to of Appeals.

take claims for collection in different The Court of Appeals affirmed the parts of the country, and, if necessary, judgment of the general term and re- have them sued.” mitted the record to the Supreme Court,

Mr. Archer, of the collection firm, that the judgment might be there en- testifies that he received the claim for tered and enforced. From this judg- collection; that he told the defendants ment, entered upon that remittitur, the if sent on at once he thought it could present writ of error is brought. be collected; that the account was veri

It appears that an account or money tied by one of the defendants and sent demand was delivered by its owners to by the witness to Mr. McLennan, a Archer & Co., a collecting agency in lawyer, at Nebraska City; that he afthe city of New York, and received by terward told the defendants the account them, with instructions to collect the had been put in judgment, and that he debt, and with no other instructions; hoped to collect the money, or the greatthat this agency transmitted the claim er part of it. When he made this comto McLennan & Archbold, a firm of munication he had McLennan's letter practicing lawyers in Nebraska City. in his hand, and communicated it to

the defendants. He further testified PRACTICE. EVIDENCE. that the money had been received by N. Y. SUPREME COURT, GENERAL TERM. him from McLennan, but had never

FOURTH DEPATMINT. been paid over to Wise & Co.

Conway, applt., v. Moulton, respt. The referee held that the knowledge Decided January 1, 1876. of the condition of the bankrupt by the Under $ 399 of the code the owner of attorneys residing in Nebraska, who chattels is not permitted to prove by took the confession of judgment, was

his vendor ihat a demand for the pos

session of such chattels was made by the knowledge of the creditors in New

such vendor as the agent of the owner York. The Supreme Court and the of the deceased partner of one in posCourt of Appeals adjudged otherwise, session of such chattels. holding them to be the agents of Archer This is an appeal from a judgment & Co., and not of Wise & Greenbaum, ordered upon the decision of the Monthe creditors. It is upon this point of roe Circuit dismissing the complaint difference that the case is now presented with costs. for decision.

James Conway sold the tools in conHeld, The general doctrine that the troversy to the plaintiff who is his knowledge of an agent is the knowl- daughter. Afterwards he engaged in edge of the principal, cannot be the service of the defendant and with doubted.

the consent of his daughter, himself It must, however, be knowledge ac- made an agreement with them whereby quired in the transaction of the busi- the use of the tools in the prosecntion ness of his principal, or knowledge ac- of the same work in which the father quired in a prior transaction then pres- was employed, was transferred to them ent to his mind, and which could prop- for an indefinite period, for what the erly be communicated to his principal. said use should be worth. Neither can it be doubted that where

When this work ceased the tools were an agent has power to employ a sub- left in the possession of the defendant, agent, the acts of the sub-agent, or no. and this action is brought to recover tice given to him in the transaction of the value thereof, upon the allegation the business, have the same effect as if that they had been demanded from the done or received by the principal.

defendant Russell, who died before the But for the acts of the agent of an trial, and that Russell refused to deliver intermediate independent employer, a them. Upon the trial the plaintiff ofprincipal is not liable; that in this case fered to prove by James Conway the McLennan was not the agent of Wise demand and refusal. The court refused & Greenbaum in such a sense that his to allow the witness to testify to these

facts and the plaintiff excepted. knowledge of the condition of Oppen The court in affirming the judgment heimer is chargeable to them; he was of the court below based its opinion the agent of the collecting agent and upon $ 399 of the code of procedure. not of the defendants.

J. C. Cochran for a wlt.

Boss & Bissell for respt. Judgment affirmed.

Held, That this case comes not only Opinion by Hunt, J.; Miller, Clif- within the intent but the words of secford and Bradley, J. J., dissenting. tion 399.

Opinion by Gilbert, J.; Mullin, P.J.

and Smith J., concurring.

HUSBAND AND WIFE. and on this occasion defendant asked N. Y. SUPREME COURT-GEN'L TERM. plaintiff if he had been to see her, and FOURTH DEPT.

plaintiff told him he had, and also how

he found her. Defendant also asked Potter, respt. v. Virgil, applt. Decided January, 1876.

if he was going down to see her again Where a physician is employed in at

and plaintiff said he should on the next tendance upon a sick person his em

day. ployment continues while the sickness Defendant states the same interview lasts, and the relation of physician as follows: and patient continues unless it is put an end of

“I called at the doctor's house and or the express dismissal of the physi- had considerable conversation with him cian,

about the occurrence, and told him they A wife cannot abandon her husband's had taken her off unbeknown to me,

house and home and bind him for and asked him if he had been down to necessaries, provisions, clothing, medical attendance, &c., except on proof see her, and he said he had, and I asked of gross abuse, neglect and miscon- him how he found her and he said comduct on the part of the husband. fortable; and I asked him when he was

This is an action for services. The going down again, and he said he did plaintiff is a physician and was employ- not know, in two or three days. Deed by defendant to attend upon his wife fendant also testified that he had sent who was sick at defendant's house, and plaintiff to his wife's father some days 80 attended her up to about August 10, after this, and that his father-in-law had 1873, and plaintiff's services up to this refused to let him see his wife. On date were duly paid for by defendant. this occasion he asked plaintiff how his

On or about August 10, 1873, the wife was--he said about the same as father of defendan'ts wite, without the she was at your house. knowledge or consent of the defendant, Geo. U. Kennedy for applt. removed her to his (said father's) house W. C. Ruger for respt. some six miles from plaintiff's and de Held, That the evidence justified the fendant's residence, and the services for assumption that after the removal of which this action is brought were rend the wife plaintiff visited her with the ered subsequent to the removal of de- knowledge and assent of defendant, or fendant's wife to her father's, and con- at least his attendance was not forbidtinued up to her death, about Septem- den nor was the contract of employber 19, 1873.

ment ever revoked. Defendant insists he was not liable That had defendant in any of the infor such services after the removal from terviews with plaintiff expressly forbidhis house. On the question whether den his attendance on his wife after her defendant ever dismissed plaintiff or removal, a different question might have forbid his further attendance upon his arisen, and there being a conflict of evwife the evidence was as follows:

idence on this branch, the judge would Plaintiff testifies that after her re- have been obliged to submit the quesmoval defendant called upon him to tion to the jury, but under the evidence learn what he, plaintiff, knew about his in the case the refusal of the judge to wife's condition and plaintiff told him, submit the question of employment to

per share.

a jury on the ground " that where a leges that he holds the circulating notes physician is employed to attend upon a of the Bank of Augusta, Georgia, to sick person his employment continues that amount, and that the defendant while the sickness lasts, and the rela- was, in June, 1862, and thenceforth, a tion of physician and patient continues holder of three hundred and seven unless it is.put an end to by the assent shares of the stock of that bank, of the of the parties or the express dismissal nominal value of one hundred dollars of the physician,” was correct.

That had the wife abandoned her The Bank of Augusta was chartered husband's home except upon clear proof December 27, 1845, and its charter conof gross neglect, abuse or misconduct tained the following provision : on the part of the husband, the hus “Sec. 3. That the individual properband would not have been liable for ty of the stockholders in said bank necessaries, medical attendance, &c., shall be bound for the ultimate redempbut under the circumstances, in this case tion of the bills issued by said bank in having hired plaintiff, and even after proportion to the number of shares held his wife's removal impliedly assenting by them respectively; and in case of a to the rendering of the services, and not failure of said bank, all transfers of forbidding them, defendant is clearly stock made within six months prior to liable.

said failure or refusal on the part of Judgment affirmed.

said bank to redeem its liabilities in Opinion by Mullin, P. J.; Gilbert specie when required, shall be void, and and Smith, J. J., concurring.

the private property of the individuals

transferring said stock shall be liable for STATUTE OF LIMITATIONS.

the redemption of the bills of said bank WHEN RIGHT OF ACTION AC

as above stated.” CRUES.

The defendant pleaded the statute of U. S. SUPREME COURT.

limitations, alleging that all of the bank Terry, plaintiff' in error v. Tubman, notes sued on were issued by the Augusdefendant in error.

ta bank prior to June 1, 1865, and that Decided March, 1876,

before that date the bank had become Under a bank charter which bound the

insolvent, unable to meet its liabilities, individual property of the stockhold- had voluntarily stopped payment and ers for the ultimate redemption of ceased to do business, and so continued the bills issued, a right of action ac- down to the time of the plea. To this crues to each' bill-holder when the plea the plaintiff demurred. The circuit bank refuses to redeem, and is no- court rendered judgment for the defendtoriously and continuously insolvent; it is not necessary to first exhaust the ant on this plea, from which the plaintitt assets of the bank by legal proceed brings his writ of error to this court. ing.

The statute of limitations of the In error to the Circuit Court of the State of Gurgia was passed on the 16th United States for the Southern District March, 1869, and is as follows, so far as of Georgia.

this action is concerned, viz: The plaintiff, a citizen of Georgia, “ Sec. 3. And be it further enacted, brings his action to recover from Mrs. That all actions on bonds or other inTubman, the sum of $5,400. He al-Istruments under seal, and all suits for

the enforcement of rights accruing to The plaintiff insists that no cause of individuals or corporations, under the action against the stockholder existed statutes or acts of incorporation, or in on the first of June, 1865, and not unany way by operation of law, which til the bank had made its assignment acrued prior to 1st June, 1865, not now in 1866, its affairs had been administerbarred, shall be brought by 1st January, ed and a demand of payment of the 1870, or the right of the party, plain- bills had been made upon the bank and tiff or claimant, and all right of action had been refused. for its enforcement, shall be forever Held, That the facts alleged in the barred.

plea are sufficient to make it a good Sec. 6. That all other actions on con- plea; in other words, that the cause of tracts, express or implied, or upon any action, so far as there is a separate and debt or liability whatsoever due the pub.. distinct right of action in favor of each lic, or a corporation, or a private indi bill-holder, was in force on the first of vidual or individuals, which accrued June, 1865. prior to 1st June, 1865, and are not now 2. That it is not necessary first to exbarred, shall be brought by 1st January haust the assets of the bank by legal 1870, or both the right and the right of proceeding. The case is not so much action to enforce it shall be forever bar- like that of the guaranty of the collecred. All limitations herein before ex- tion of a debt, where the previous propressed shall apply as well to courts of ceeding against the principal debtor is equity as courts of law, and the limita- implied, as it is like a guaranty of paytion shall take effect in all cases men- ment, where resort may be had at once tioned in this act, whether the right of to the guarantor without a previous action had actually accrued prior to the proceeding against the principal. 1st June, 1865, or was then only in That the liability for the ultimate rechoate and impertect, if the contract or demption of the bills, if properly enliability was then in existence.” forced, arises when the bank refuses or

The plea demurred to alleges, and it ceases to redeem and is notoriously and is to be here assumed to be true, that continuously insolvent. the bank notes held by the plaintiff had Judgment affirmed. been issued by the bank prior to June Opinion by Hunt, J. 1, 1865, the time specified in the limitatiou act just quoted. It is further al- SPECIFIC PERFORMANCE. POSleged, to be taken as true, that prior to

SESSION. that time the bank had become noto

N. Y. COURT OF APPEALS. riously insolvent, unable to meet its lia Miller, respt., v. Ball, applt. bilities, and had ceased to do business. Decided Feb. 25, 1876.

. The question is whether the right of Where, under a parol contract for action now sought to be enforced, had, the purchase of land, the vendee has on or before June 1, 1865, by means of paid the consideration but received these facts, accrued to the plaintiff. If

no deed,

consent that the vendee it had, the present action is barred by


take possession of the land will

be implied ; it cannot be inferred the statute, as this is one of the actions

that the vendor intends to retain the embraced within the terms of the stat consideration and the use of the ute.


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