Foster against Preston

Foster against Preston. -A-SSUMPSIT for money had and received, tried at the Delaware circuit, November 21st 1826, before Betts, late Judge. The material facts proved, were, that one Jackson died e r ? J in the service of the United States, leaving a widow and children, who, by the laws of the United States, became entitled to money m lieu of bounty lands. The plaintiff . _ , .. J . . _ married J ackson s widow; and was appointed guardian of children. He employed the defendant to procure the money from the United States; for that purpose executing to him a power of attorney as guardian, he and his w^e J°™n§ ™ a P°wer as to her share, and both powers containing clauses of substitution. The weight of evidence •hvas, that the plaintiff and defendant agreed that the money should be remitted by draft. The defendant, by an instrument in writing, substituted Yan Zandt and Rockwell, of Washington, or either of them, to procure the money, directing them, by letter, to forward the money by mail, after taking out commission. The money was accordingly procured, and put into the post-office at Washington, directed in a letter by Yan Zandt and Rockwell fo the defendant. There was no very satisfactory proof that the defendant had actually received it. Senib that an attorney apa power of substitution, is the attorney the principal; aa^ attorney's not hable for his acts, or on his receipt of if the origina^ attorstractions6 ‘to di‘fferentSt‘from those given the former by the principal, in following which a loss accrues, the original attorney thereby makes the substitute his own agent quoad hoc, and is solely accountable. K g. P.,gave a letter of attorney to E. to procure and remit money, with power of substitution ; P. directing the money to he remitted by draft. E. made a substitute, and directed a remittance by mail in money, which was accordihgly sent by letter, and lost. Meld, that the substitute was F’s agent quoad hoc, not the agent of the principal; and that the receipt and remittance of -the money by the substitute in this manner, was equivalent to a receipt by the original attorney, who was liable to his principal as for money had and received to his use. Where one is entitled to money in right of another, e. g. in right of his wife, or his ward, and another receives it for him under his authority, he may sue his agent, and recover the money in his own name, without notice of the character in which he originally claimed it. An objection was taken by the defendant’s counsel, that the share of the children should not be included in the plaintiff’s claim; but the judge overruled the objection. He charged the jury, that by construction of law, Yan Zandt and Rockwell were the agents of the defendant, and not of the plaintiff; and the receipt of the money by them rendered the defendant liable; but that if such was not the construction of law, yet, if the original direction of the plaintiff was to have the money remitted in a draft, and the defendant changed it, then Yan Zandt and Rockwell were his agents, and he was liable. At any rate, if they found the money was actually received by the defendant, he was liable. Yerdiet for the plaintiff. J. A. Collier, for the defendant, now moved for a new trial. He insisted that Yan Zandt and Rockwell were to be considered agents of the plaintiff; and, at any rate, the money due to the children should not have been allowed. The plaintiff does not declare as guardian ; and the claim cannot be joined with one in favor of the plaintiff, or him and his wife. Beside, the plaintiff and his wife should have joined. He cited 15 John. 479. 8. Sherwood, contra, cited 1 Liv. on Agency, 358, 368; Pal. on Ag. 2, 4; 2 Gall. 565; 4 Burr. 1984. [MAJORITY — Cuna, per Savage, Oh. J.] Cuna, per Savage, Oh. J. The points ruled by the judge, must be taken in reference to the facts of the case. Whether, *n general, the substitute is the agent of the attorney, and not the principal, we need not decide. The *substitute is certainly the attorney of the principal for some purposes. In this case, Van Zandt executed a release to the government, as the attorney of the plaintiff and his wife, which no doubt is valid and obligatory; and had he not forwarded the money to the defendant, he would be liable to pay it to the plaintiff. So far, therefore,. as the judge expressed an opinion on the abstract proposition, that Van Zandt and Bockwell were the agents of the defendant, I am inclined to think he erred. But it ' i seems to me to have no necessary connection with the case. The defendant was employed to procure certain moneys, to which the plaintiff was legally entitled. The proper documents were furnished for that purpose, and the mode in which the remittance should be made is pointed out. The defendant directed a different mode of remittance; and the money was lost. Upon this state of facts, nothing can be clearer than that the defendant is liable. He constituted Van Zandt and Bockwell his own agents for the purpose of remittance. Then the receipt of the money by them, was, in effect, a receipt by the defendant; and makes him liable in this action. As to the last branch of the judge’s charge, there can be no question ; and had the verdict been founded entirely upon the fact of the defendant’s actual receipt of the money, I should not be willing to disturb it. The judge is said to have erred, in permitting a recovery for the money due to the children of Jackson; but the objection is not well founded. The money was due to the plaintiff; and it could not be important what he was to do with it, or to whom it ultimately belonged. Suppose an administrator appoints an attorney to collect money due to the principal as administrator, and the money is collected, but not paid over upon demand; surely the action need not be in his character as administrator. The plaintiff must sue in his own right; and would, in such a case, be liable for costs on failure. Upon a similar principle, the wife need not he joined; and upon the whole, there is no good ground for a new trial. New trial denied. See New Tork Digest, tit. Principal and Agent.