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 *Page 3 the boy took the drafts to the office of the defendants, and there received payment of them in money, and returned and paid the money over to Payne.
The boy had no apparent authority to receive payment of the drafts. They were payable at sight to the order of the plaintiffs, but were indorsed specially by Payne for the plaintiffs, "For deposit in the Broadway National Bank." This indorsement did not confer apparent authority on the boy to receive payment. The defendants must, therefore, rely upon proofs of actual authority, or that the money reached the hands of the plaintiffs or their authorized agent.
We think that there is evidence in the case of authority in Payne to receive the money, and that this fact, if established, sustains the finding that the drafts were paid to the plaintiffs. Mr. Johnson, one of the plaintiffs, testified that Payne received money at plaintiffs' office, for debts due the plaintiffs; that "he was the confidential clerk and received money and receipted bills right along," and that he had authority to do so; and in the affidavit made by Mr. Johnson on the prosecution of Payne for embezzlement, he states that Payne was clerk and book-keeper, and that a part of his duties was to receive and keep account of money paid or remitted to the dependent in the transaction of his business. The evidence is, we think, sufficient to sustain a finding by the referee that Payne was authorized to receive money payable to the plaintiffs in the course of their business, and that a payment to him was a good payment to the plaintiffs; consequently, that although the payment to the boy was irregular in the first instance, yet when the boy returned to the office with the money and paid it over to Payne, his receipt of it was a valid payment to the plaintiffs. Had the boy absconded with the money, it would have been more difficult to sustain the defense.
The judgment should be affirmed.
All concur.
Judgment affirmed. *Page 4