90 N.Y. 1, Johnson v. Donnell

Citation:90 N.Y. 1
Party Name:ALVIN J. JOHNSON et al., Appellants, v. ROBERT W. DONNELL et al., Respondents.
Case Date:October 10, 1882
Court:New York Court of Appeals

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90 N.Y. 1

ALVIN J. JOHNSON et al., Appellants,

v.

ROBERT W. DONNELL et al., Respondents.

New York Court of Appeal

October 10, 1882

Argued Jun. 19, 1882

COUNSEL

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Payson Merrill for appellants. Even if plaintiffs were negligent it cannot avail the defendants. ( People v. The Bk. of N. A., 75 N.Y. 547.) Plaintiffs' instructions were equivalent to express directions, not to take money for the draft. ( Doubleday v. Kress, 50 N.Y. 410.) Neither Payne nor Heilbut had apparent authority to receive the money, and the plaintiffs are not estopped from showing want of actual authority. ( People v. Bk. of N. A., 75 N.Y. 547; Doubleday v. Kress, 50 Id . 410.) The rule that where an agent is authorized to do an act, third persons are not bound by private instructions as to the manner of exercising his power, is not applicable here. (Story on Agency [9th ed.], 9, note; Doubleday v. Kress, 50 N.Y. 410; Hatch v. Taylor, 10 N.H. 538.)

Rastus S. Ransom for respondents. Before they can recover plaintiffs must show that the defendants committed a wrong. ( Walter v. Bennett, 16 N.Y. 250.) Plaintiffs have no cause of action against defendants ex contractu. ( Bk. of Lowville v. Edwards, 11 How. 216; Abb. Plea Forms, 151; 39 N.Y. 216; 1 Daly, 500; 49 Barb. 221; 17 Wend. 508; 1 Am. L. R. 219; 30 How. 190; 6 Abb. Dig. 49; 1 Johns. Cas. 205; 3 Bosw. 505, 513; 2 R. S. [ Banks' 6th ed.] 1160, § 6; Lunt v. Bk. of N. A., 49 Barb. 229; 30 How. 190; 1 Daly, 500; 6 N.Y. 412; 5 Bosw. 341; 11 Paige, 617; 5 Hill, 413; affirmed by 7 Id . 517; 3 Comst. 251; Id . 115; 1 Seld. 530; 2 Id . 417; 3 Denio, 553; 5 Hill, 432; 2 Wend. 548; 17 Id . 508; 60 N.Y. 151; 12 Wend. 593; 5 Id . 414; 4 Hun, 96, 97.)

RAPALLO, J.

The referee has found that the drafts in controversy were paid by the defendants to the plaintiffs. This finding is excepted to, and the only question in the case is whether there is any evidence to sustain the finding.

It is conceded that the drafts were paid by the defendants to a messenger boy in the employ of the plaintiffs. This boy had been directed by the plaintiffs to obey the orders of their confidential clerk and book-keeper, Payne. By direction of Payne

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the boy took the drafts to the office of the defendants, and there received payment of them in money, and returned...

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