E. Norman Leslie, Respondent, v. William H. Wiley, Appellant

E. Norman Leslie, Respondent, v. William H. Wiley, Appellant. Where one assumes to act as agent for a single member of a firm in the sale of parnership property, the receipt by the assumed principal of the money received on the sale is a ratification of the agency, and an adoption of the means by which it was obtained. And when the purchaser was ignorant of the existence of the partnership, the other partners need not be joined in an action to recover back the money paid, for fraud on the part oí the agent, or for mistake. The declared principal becomes liable immediately upon the receipt of the money, and his subsequent division of it among persons who were strangers in the transaction to the plaintiff cannot affect his liability. (Argued February 21st, 1872; decided March 26th, 1872.) Appeal from judgment of the General Term of the Supreme Court in the fourth department, affirming judgment in favor of plaintiff, entered upon verdict and affirming order denying motion for new trial. The complaint in this action alleges, in substance, that in March, 1865, the defendant induced plaintiff to pay him $1,000 to purchase an interest in a farm in the oil regions, in Pennsylvania, known as the Magee farm, on the false representation that the farm was held for sale at the price of $50,000; and that the defendant and others were about to purchase it at that price; and if the plaintiff would advance the $1,000 he should have one-fiftieth part of the land. That plaintiff being moved by said representations advanced to the defendent the money. That the representations were false, and that defendant had already purchased the farm for $20,000. That the plaintiff paid $1,000, whereas his proportion should have been $400; 'and that by such false representations the defendant extorted from the plaintiff $600 more than plaintiff’s proper share. The second cause of action is to recover $600 for money had and received by the defendant for plaintiff’s use, and plaintiff demands judgment for $600 and interest from March 1st, 1865. The answer contains a general denial, and a plea of nonjoinder, in substance, as follows: That the alleged representations were made by, and said alleged payment made to, defendant jointly with Luman B. Wing and Reuben W. Wing, and not by and to this defendant alone, and that said Wings are still living and within the jurisdiction of the court, and are necessary parties hereto; and are not now, and have not been, parties hereto. The transaction was had between plaintiff and one Luther A. Wickes, who assumes to act for defendant, and who paid over the $1,000 received from plaintiff to defendant. The facts as to the agreement as found by the jury, appear sufficiently in the opinion. The property in question was, in fact, purchased for $17,000 instead of $50,000. It appeared that the two Wings were equally interested with defendant in the transaction, and that he paid to them then* proportion of the money received from plaintiff. The defendant’s counsel suggested to the court that if the jury find that Luther A. Wickes was the agent for anybody, he was the agent for the two Wings as also of Mr. Wiley, the defendant, and the three should have been sued. The court decided that if the jury should find for the plaintiff, he would reserve the verdict for the consideration of this question. The jury found a verdict for the plaintiff for $856.35. The court then ruled in favor of plaintiff upon the question of agency and non-joinder. To which ruling defendant’s counsel excepted. JF. C. Moak for appellant. The non-joinder of the Messrs. Wing is fatal to plaintiff’s right of recovery. (Harris v. Schultz, 40 Barb., 315 ; Graham’s Pr., p. 93, 2d ed.; Burrill’s Pr., p. 68; 1 Saunders, 291, note g.; 2 Bos. & Pul., 365, 454; Bosen v. Sandford, 2 Salkeld, 440.) Samuel Hand for respondent. Defendant by receiving the money obtained from plaintiff, adopted all the agencies by which it was procured. (See Lee v. Sandy Hill, 1 Hand, 448; Davis v. Bemis, id., 453, note and authorities cited; Dunlap’s Paley, 171, note; 9 Cranch, 153; 19 Johns., 554; 11 Barb., 40; 53 Barb., 60; Booth v. Pierce, 40 id., 114; Union Bank v. Mott, 30 id., 180; Sharp v. Mayor, 40 id., 256; Bennett v. Judson, 21 N. Y., 238; citing, also, 23 Wend., 260, 267, 269; Murray v. Binninger, 3 Keyes, 109; Crane v. Hunter, 28 N. Y., 389; Elwell v. Chamber lin, 31 id., 619; Kesler v. Salisbury, 33 id., 552, 553; Locke v. Stevens, 1 Metcalf, 560; Story on Agency, § 452.) It was not necessary to join the Wings as defendants; (Brown v. Birdsall, 29 Barb., 549; Mullett v. Hook, 1 Moody & Malk., 88; Baldwin v. Kitchen, 1 Stark., 338 ; North v. Blow, 30 N. Y., 379, and cases cited, p. 380 ; Creed v. Hartman, 29 N. Y., 597; De Mautort v. Sanders, 1 Barn. & Adol., 398, overruling Dubois v. Ludert, 5 Taunt., 609; Cookingham v. Lasher, 38 Barb., 659, and cases cited, 660; North v. Bloss, 30 N. Y., 376.) It is no objection to a recovery that the personal fraud of defendant is not proved, provided sufficient facts appear to warrant a recovery as for moneg had and received. (Bixbie v. Wood, 24 N. Y., 607; Lee v. Sandy Hill, 1 Hand, 448 ; Chitty Cont., 601; Davis v. Bemis, id., 453, and cases cited.) [MAJORITY — Church, Ch. J.] Church, Ch. J. The circumstance that the plaintiff added a general count, for money had and received, in his complaint, has no significance in determining whether the first count is for fraud or on contract. The character of that count must be determined by its own merits. It must be admitted however, that the first count is somewhat equivocal in its character, but it is not material to pass upon that question. It may be regarded as an action for money had and received for the purposes of this appeal, and the allegations of fraud as pertinent only by way of showing the occasion of paying the money, and that it was by mistake and not voluntary. (Byxbie v. Wood, 24 N. Y., 607.) The controling issue was one of fact, whether the plaintiff agreed to become the purchaser of one-fiftieth interest of the property of Mrs. Magee for which the defendant had the refusal, and pay his proportionate share of the cost, or whether he was to become the purchaser of that share of the property from the defendant and the Wings, at the price of $50,000, and this question turned mainly, upon the fact whether the plaintiff signed a paper like that produced by the defendant, or one described by the plaintiff, and the jury decided for the plaintiff. When the question of the non-joinder of the Wings was presented, the court proposed to reserve the decision of it until after the verdict of the jury, which seems to have been acquiesced in; at all events no objection appears to have been made. After the jury rendered their verdict the court ruled in favor of the plaintiff upon the question of agency and non-joinder, which was excepted to. We are bound to assume the facts as claimed by the plaintiff, from the binding force of the verdict of the jury which the judge doubtless acted upon. Independent of that we should take that view of the evidence which would sustain instead of reversing the decision upon the legal point.- Assuming these facts, the non-joinder of the Wings was not error. The plaintiff dealt with the defendant through Wickes, who, whether authorized or not, paid the money to the defendant. The plaintiff knew nothing of the Wings, and never heard of them. A dormant partner need not be joined in an action, nor one not generally known. (30 N. Y., 374.) Wickes assumed to act for the defendant, and the receipt of the money of him by the latter was a ratification of the agency in that respect, and an adoption of the means by which it was obtained. (2 Den., 646 ; Dunlap’s Paley, 171, note.) The defendant became liable immediately upon the receipt of the money, and his subsequent division of it among persons who were strangers, in the transaction, to the plaintiff, could not affect his liability. The facts were fairly submitted to the jury, and the verdict, whether just or not, is conclusive upon this court, and the single legal point as presented is not tenable. The judgment must be affirmed with costs. All concur; Folgeb, J., absent. Judgment affirmed.