Arian M. Hancock, Respondent, v. Raphael M. Gomez et al., Appellants

Arian M. Hancock, Respondent, v. Raphael M. Gomez et al., Appellants. An agent'employed by a trustee to collect a claim, the subject of the trust, has no right to undertake the discharge of the trust, and in an action against him by his principal for refusal to pay upon demand the moneys collected, it is no defence that he has paid it to one claiming to be the cesiui que irusi. (Submitted June 18, 1872; decided November 12, 1872.) Appeal from order of the General Term of the Supreme Court of the first judicial department, reversing a judgment in favor of defendants and granting a new trial. On July 26, 1862, at Malaga, Spain, the plaintiff, who was United States consul, received from James H. Hewitt, master of the barque Reindeer, belonging to W. A. Sale & Co., of New York, an order on Sale & Co. for the payment to the plaintiff of $176.33-|, balance of wages due one John H. Hanson, as mate of said barque, which order the plaintiff subsequently sent to the defendants, with his consular certificate attached, and a direction to Sale & Co. to pay said amount to the defendants. Defendants received the same, and collected of Sale & Co. the amount of money therein mentioned, gave a receipt therefor, placed it to plaintiff’s credit, and acknowledged to plaintiff that they had received it. Some two or three months after, a woman, calling herself Mrs. John H. Hanson, and claiming to he the widow of said Hanson, came to said Sale & Co. and claimed that she was entitled to said money; whereupon Sale & Co. notified defendants, who paid the money back, and they paid it to her. There was no evidence of the death of Hanson or that the woman was his wife. Some time in April, 1863, a demand of the money was made of defendants on behalf of plaintiff and payment thereof refused. Held, that plaintiff held the money officially as United States consul for whoever might be entitled thereto, and that defendants, his agent, had no right to undertake to discharge the trust; that the facts were no justification for the return of the money, and that defendants were liable. Erastus Coolee for the appellants. B. F. Watson for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads opinion for affirmance- of order. All concur. Order affirmed and judgment absolute against defendants.