NEW YORK WEEKLY DIGEST. [No. 11. VOL. 2.] MONDAY APRIL 24, 1876. U. S. SUPREME COURT. Several acts of bankruptcy had been committed by Oppenheimer when Mr. McLennan pursuaded him to confess judgment for the debt thus sent to him. Proceedings in bankruptcy were instituted against Oppenheimer within four months after such confession, and were prosecuted to a decree of bankruptcy. Where an attorney is employed by a col-At the time of receiving the confession, lection agency to collect a claim, the attorney is the agent of the collection agency, and not of the creditor. Error to the Supreme Court of New York. This action is brought by an assignee in bankruptcy to recover back a sum of money collected from the bankrupt after the occurrence of several acts of bankruptcy. McLennan was well aware of the insolvency of Oppenheimer, and that the confession was taken in violation of the provisions of the bankrupt act. The money collected was remitted to the collection agents in New York, from whom he received the claim, but never paid by them to Wise & Greenbaum, the creditors. When the debt 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 instructions." "The business of Led reversed and a new trial was ordered. The plaintiff appealed to the Court of Appeals. yard, Archer & Co. (he says) was to take claims for collection in different parts of the country, and, if necessary, have them sued." The Court of Appeals affirmed the judgment of the general term and remitted 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 veriIt appears that an account or money fied by one of the defendants and sent demand was delivered by its owners to by the witness to Mr. Mc Lennan, 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 been paid over to Wise & Co. FOURTH DEPATMENT. Conway, applt., v. Moulton, respt. Decided January 1, 1876. Under § 399 of the code the owner of chattels is not permitted to prove by his vendor that a demand for the possession of such chattels was made by such vendor as the agent of the owner of the deceased partner of one in possession of such chattels. The referee held that the knowledge of the condition of the bankrupt by the attorneys residing in Nebraska, who took the confession of judgment, was the knowledge of the creditors in New York. The Supreme Court and the Court of Appeals adjudged otherwise, holding them to be the agents of Archer & Co., and not of Wise & Greenbaum, the creditors. It is upon this point of difference that the case is now presented with costs. for decision. This is an appeal from a judgment ordered upon the decision of the Monroe Circuit dismissing the complaint 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. It must, however, be knowledge acquired in the transaction of the business of his principal, or knowledge acquired in a prior transaction then present to his mind, and which could properly be communicated to his principal. Neither can it be doubted that where an agent has power to employ a subagent, the acts of the sub-agent, or notice given to him in the transaction of the business, have the same effect as if done or received by the principal. But for the acts of the agent of an intermediate independent employer, a principal is not liable; that in this case McLennan was not the agent of Wise & Greenbaum in such a sense that his knowledge of the condition of Oppenheimer is chargeable to them; he was the agent of the collecting agent and not of the defendants. Judgment affirmed. Opinion by Hunt, J.; Miller, Clifford and Bradley, J. J., dissenting. the consent of his daughter, himself made an agreement with them whereby the use of the tools in the prosecution. of the same work in which the father was employed, was transferred to them for an indefinite period, for what the said use should be worth. When this work ceased the tools were left in the possession of the defendant, and this action is brought to recover the value thereof, upon the allegation that they had been demanded from the defendant Russell, who died before the trial, and that Russell refused to deliver them. Upon the trial the plaintiff offered to prove by James Conway the demand and refusal. The court refused to allow the witness to testify to these facts and the plaintiff excepted. The court in affirming the judgment. of the court below based its opinion upon § 399 of the code of procedure. J. C. Cochran for alt. Boss & Bissell for respt. Held, That this case comes not only within the intent but the words of section 399. Opinion by Gilbert, J; Mullin, P. J. and Smith J., concurring. HUSBAND AND WIFE. N. Y. SUPREME COURT-GEN'L TERM. Potter, respt. v. Virgil, applt. Where a physician is employed in attendance upon a sick person his em ployment continues while the sickness lasts, and the relation of physician and patient continues unless it is put an end to by the assent of the parties, or the express dismissal of the physi cian, A wife cannot abandon her husband's house and home and bind him for necessaries, provisions, clothing, medical attendance, &c., except on proof of gross abuse, neglect and misconduct on the part of the husband. This is an action for services. The plaintiff is a physician and was employed by defendant to attend upon his wife who was sick at defendant's house, and so attended her up to about August 10, 1873, and plaintiff's services up to this date were duly paid for by defendant. On or about August 10, 1873, the father of defendan'ts wife, without the knowledge or consent of the defendant, removed her to his (said father's) house some six miles from plaintiff's and defendant's residence, and the services for which this action is brought were rendered subsequent to the removal of defendant's wife to her father's, and continued up to her death, about September 19, 1873. Defendant insists he was not liable for such services after the removal from his house. On the question whether defendant ever dismissed plaintiff or forbid his further attendance upon his wife the evidence was as follows: Plaintiff testifies that after her removal defendant called upon him to learn what he, plaintiff, knew about his wife's condition and plaintiff told him, and on this occasion defendant asked plaintiff if he had been to see her, and plaintiff told him he had, and also how he found her. Defendant also asked if he was going down to see her again and plaintiff said he should on the next day. Defendant states the same interview as follows: "I called at the doctor's house and had considerable conversation with him about the occurrence, and told him they had taken her off unbeknown to me, and asked him if he had been down to see her, and he said he had, and I asked him how he found her and he said comfortable; and I asked him when he was. going down again, and he said he did. not know, in two or three days. fendant also testified that he had sent plaintiff to his wife's father some days after this, and that his father-in-law had refused to let him see his wife. On this occasion he asked plaintiff how his wife was-he said about the same as she was at your house. Geo. U. Kennedy for applt. De Held, That the evidence justified the assumption that after the removal of the wife plaintiff visited her with the knowledge and assent of defendant, or at least his attendance was not forbidden nor was the contract of employment ever revoked. That had defendant in any of the interviews with plaintiff expressly forbidden his attendance on his wife after her removal, a different question might have arisen, and there being a conflict of evidence on this branch, the judge would have been obliged to submit the question to the jury, but under the evidence in the case the refusal of the judge to submit the question of employment to 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. per share. The Bank of Augusta was chartered December 27, 1845, and its charter contained the following provision: That had the wife abandoned her husband's home except upon clear proof of gross neglect, abuse or misconduct 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 said bank to redeem its liabilities in Judgment affirmed. Opinion by Mullin, P. J.; Gilbert specie when required, shall be void, and and Smith, J. J., concurring. STATUTE OF LIMITATIONS. WHEN RIGHT OF ACTION AC. CRUES. U. S. SUPREME COURT. the private property of the individuals transferring said stock shall be liable for the redemption of the bills of said bank as above stated." The defendant pleaded the statute of limitations, alleging that all of the bank Terry, plaintiff in error v. Tubman, notes sued on were issued by the Augus defendant in error. Decided March, 1876, ta bank prior to June 1, 1865, and that 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 plaintiff assets of the bank by legal proceed brings his writ of error to this court. ing. In error to the Circuit Court of the United States for the Southern District of Georgia. The statute of limitations of the State of Gorgia was passed on the 16th March, 1869, and is as follows, so far as 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-struments under seal, and all suits for the enforcement of rights accruing to individuals or corporations, under the statutes or acts of incorporation, or in any way by operation of law, which acrued prior to 1st June, 1865, not now barred, shall be brought by 1st January, 1870, or the right of the party, plaintiff or claimant, and all right of action for its enforcement, shall be forever barred. The plaintiff insists that no cause of action against the stockholder existed on the first of June, 1865, and not until the bank had made its assignment in 1866, its affairs had been administered and a demand of payment of the bills had been made upon the bank and had been refused. 2. That it is not necessary first to exhaust the assets of the bank by legal Held, That the facts alleged in the 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 barred, shall be brought by 1st January 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 inchoate and imperfect, if the contract or liability was then in existence." The plea demurred to alleges, and it is to be here assumed to be true, that the bank notes held by the plaintiff had been issued by the bank prior to June 1, 1865, the time specified in the limi That the liability for the ultimate redemption of the bills, if properly enforced, arises when the bank refuses or ceases to redeem and is notoriously and continuously insolvent. Judgment affirmed. Opinion by Hunt, J. SESSION. tation act just quoted. It is further al- SPECIFIC PERFORMANCE. POSleged, to be taken as true, that prior to that time the bank had become notoriously insolvent, unable to meet its liabilities, and had ceased to do business. The question is whether the right of action now sought to be enforced, had, on or before June 1, 1865, by means of these facts, accrued to the plaintiff. If it had, the present action is barred by the statute, as this is one of the actions embraced within the terms of the statute. N. Y. COURT OF APPEALS. Miller, respt., v. Ball, applt. Decided Feb. 25, 1876. Where, under a parol contract for the purchase of land, the vendee has paid the consideration but received consent that the vendee no deed, may take possession of the land will be implied; it cannot be inferred that the vendor intends to retain the consideration and the use of the land. |