Julia W. Porges, Respondent, v. United States Mortgage and Trust Company, Appellant

Julia W. Porges, Respondent, v. United States Mortgage and Trust Company, Appellant. First Department, December 30, 1909. Principal and agent — power of attorney construed — authority to expend money received for principal — conversion — when depositary of fund not liable. . Where a power of attorney in substance authorized an agent to sell and dispose of certain lands and to accept in return either cash or other property and to sell the other property so,received and with the proceeds to pay off incurm 'brances on the lands, etc., and the principal agreed that she would pay to the agent any excess necessary to protect her equity in the lands, the agent had implied power to indorse and deposit to' his own account a check payable to his principal’s order, received in the course of the transaction, although such ( power was not expressly given. As under said power of attorney he had power to expend cash derived from the " transaction, he had like authority to convert the check into cash and to deal with the proceeds. Hence, a bank with which the agent deposited the check is not liable to the principal although the agent withdrew the proceeds and converted them to his own use. Ingraham and Clarke, JJ., dissented. Appeal by the defendant, the United States Mortgage and Trust Company, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of .the cleric of the county of New York on the 1st day of February, 1909, upon the verdict of a jury • rendered by direction of the court. The printed case on appeal contains also a notice of appeal from the same judgment by the plaintiff Julia W. Porges. ■ Charles II. Tuttle, for the appellant. Henry Amerman, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The defendant appeals from a judgment upon a verdict rendered by direction of the court. The action is for the conversion of a check deposited with defendant by one A. E. Hoyt. The plaintiff being, on April 25, 1907, the owner of two houses on West Twenty-first street in the city of New York, a mortgage upon which was being foreclosed, and wishing to dispose of tliem, gave a very broad power of attorney to said A. E. Hoyt to act for her. Hoyt effected an'exchange of plaintiff’s.houses for a lot of land at One Hundred and Seventy-second street and" Audubon avenue with one Duff, with whom was associated in interest one Van Sant. The terms upon which this exchange was arranged required Duff and Van Sant to convey the Audubon avenue property free from incumbrances, except a mortgage for $35,000, and to pay $12,000 in cash, while the plaintiff was to pay off all the incumbrances upon her property except the mortgage. These incumbrances amounted to nearly $7,000. Hoyt cheated plaintiff, telling her that only $2,000 was to be paid in cash, and subsequently sending her a bill for alleged disbursements, upon which he credited her with $2,000 and some returned insurance premiums, showing an alleged balance due from her of $5,746, which she paid him. In fact Hoyt had received from Duff a check for $2,772.83 drawn to the order of plaintiff or Hoyt, and from Van Sant a check for $4,000. The action is for damages for the conversion of this $4,000 check. The check was dated May 10, 1907, drawn by Van Sant to his own order, and indorsed by him to the order of plaintiff.' Hoyt received the check, indorsed it “Pay to the order of A. E. Hoyt, Julia W. Porges,” and on May fourteenth with it opened an' account with defendant. The plaintiff, who was herself at the time a depositor with- defendant, says of Hoyt’s signature of her name: “ That signature is an attempt at an imitation of my signature in my opinion. I would not consider it a fair imitation.” Afterwards Hoyt made deposits and withdrawals from the account, and on October 5, 1907, shortly before this action was commenced, had a credit balance of $509.37. Plaintiff learned on July 31, 1907, of Hoyt’s action in depositing the check, but gave no notice to defendant until she commenced this action on or about October 17,1907. The jury, in answer to specific questions put to them by the court, found that plaintiff did not exercise due diligence in notifying the defendant and that, in consequence of her silence, it was damaged to the extent of $500. The verdict directed by the court was for $4,000 with interest, less the $500 damage suffered by defendant. In considering the questions involved in this appeal.it is desirable to keep in mind the' fact, strongly insisted upon by plaintiff, that this is an action only for the conversion of the check, and not one to recover its proceeds. The only-question, therefore, is as to Hoyt’s authority to deposit the check to his own account with defendant. Whether or not he was so empowered depends upon the extent of the authority given him by the power of attorney, upon which defendant relies. It reads as follows: “Apr. 25, 1907. “ For and in consideration of one dollar, to me in hand paid, the receipt whereof is hereby acknowledged, I, Julia W. Porges, individually and as Executrix of" the. late John H. Porges, do hereby authorize Adelbert E. Hoyt to dispose of my property Ho. 218 and 220 West 21st Street, Borough of Manhattan, City of Hew York, at such price and under such conditions as he may see fit and to accept either cash or other property, or both, and take any property subject to existing encumbrance (if any) on said property so taken in exchange, and I hereby give to said Hoyt my full power of attorney to sign contracts and to execute any and all papers in connection therewith and also full authority to sign, sell and manage any property so accepted in exchange, and to pay out any necessary money in settlement of. interest, taxes, water, salaries or other bills or court costs and commissions for the sale of any of the said properties, the same as if I did so myself, it being understood that the said 21st Street property is now under foreclosure, and money must be paid in settlement in order to deliver deed of same, and that I shall lose my entire equity in same unless said Hoyt can effect some sale or exchange whereby some benefit may accrue, and, therefore. I give unconditional and unlimited authority to him to do anything he deems advisable with said property, and any money that must he paid in excess of what may or may not be received in said transaction I will pay to him in cash when called upon without accounting or defense of any character. “ (The following in pencil: Irrevocable under any condition.) “(Signed) JULIA W. PORGES.. “ Witness - “ Mary W. Lillie.” It would be difficult to draw a more general and comprehensive-power than.this so far as concerns the selling of plaintiff’s property and disposing of .the proceeds. Hoyt 'was not1 only authorized to dispose of the property, but he was authorized to accept in payment “ either cash or other property or both,” and to “ sign, sell and manage any property so accepted in exchange, ánd to pay out any necessary money in settlement of interest, taxes, water, salaries or other bills or court costs and commissions.” The power expressly recognizes and recites that “the said 21st Street property is now under foreclosure, and money must be paid in settlement in order to deliver deed of same.” Thus authority was given to Hoyt in express terms to accept cash in settlement of whatever sale he was able to effect, and undoubtedly the purchasers would have been protected if they had given him cash, or a check to his order, as Duff did. It is also perfectly clear that it was plaintiff’s intention that Hoyt should use in the first place and so far as it would go, whatever money was received upon the transaction to pay the charges upon her property, for her agreement was that “ any money that must be paid in excess of what may or may not be received in said transaction, I will pay to him in cash when called upon.” Thus the authority given to Hoyt was to sell or dispose of the Twenty-first street property; to accept in payment cash or other property ; to sell the property so received, with the proceeds of the sale to pay off the incumbrances, and if such proceeds were insufficient, to receive the excess from plaintiff. It-is true that the power did not in express terms authorize Hoyt to indorse checks drawn to plaintiff’s order, but this we think was necessarily involved. If Yan Sant had given Hoyt cash, as he might have doné under the power, Hoyt might have deposited it in any bank in his own. name. The check was simply a token representing cash. Hoyt had authority to use the cash derived from the transaction, and we think had likewise authority to convert the check into cash, which was the practical effect of depositing it. In fact in so doing he was carrying qut exactly what plaintiff authorized him to do and intended that, he should do. It is not always necessary that explicit authority must be given an agent to justify his indorsement. of a check or bill drawn to his principal’s order. An agent who is employed to procure a note to be discounted may indorse it in the name of his employer, or he may, unless expressly restricted, indorse it in his own name and claim indemnity of his principal. (Nelson v. Hudson River R. R. Co., 48 N. Y. 498) And the power to make and indorse negotiable instruments may be implied as a necessary incident of powers' expressly conferred, as where an entire business or an entire transaction is intrusted to the agent and it becomes necessary to make or indorse negotiable paper in order to effectually carry out the agency. (Whitten v. Bank of Fincastle, 100 Va. 516; Gould v. Bowen, 26 Iowa, 77; Gate City Building & Loan Assn. v. Nat. Bank of Commerce, 126 Mo. 82.) We are of opinion, therefore, that the broad and unlimited power given to Hoyt authorized him not only to receive cash on á transfer of the property, but to convert into cash a check given on the transfer,, even though that check was made payable to plaintiff. If so he. was entitled to deposit the check and defendant was not guilty of a conversion in receiving it and placing the proceeds •to Hoyt’s individual credit. The fraud which- Hoyt perpetrated on plaintiff was in liis subsequent misappropriation of the money, if he did misappropriate this particular sum, and in his obtaining froni plaintiff subsequently a- large payment under false representations. For these frauds defendant is not responsible. The judgment appealed from must be reversed and a ,new trial granted, with costs to appellant to abide the event. • McLaughlin and . Houghton, JJ., concurred; Ingraham and Clarke, JJ., dissented. Judgment reversed, new trial ordered, costs to appellant to abide event. . ... •