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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 455 It appears in this case that certain moneys became due under a contract entered into on the 21st day of September, 1839, between P.B. Starke and Samuel F. Butterworth the plaintiff, and the postmaster-general of the United States, for carrying the mails, and that a portion thereof, for which this action was brought, was paid to the defendant by the treasurer of the United States on two different warrants issued and given by the postmaster-general. Such payment was made after adverse claims on the department by the plaintiff and defendant respectively, and the money was all received by the defendant with the full knowledge *Page 456 of the plaintiff's claim, without his consent or that of any one on his behalf, and in opposition to his wish and will, and the question presented for our decision is whether it was so received to and for the use of the plaintiff. The facts on which the claim is based are substantially of the same nature as those stated in the case of Patrick v. Metcalf (37 New York Rep., 332), in which it was said by PARKER, J., in giving the opinion of the court, that "when two claimants for the same service apply for payment to the party bound to pay the same, one of whom is recognized as the person entitled to payment, and is paid to the exclusion of the other, who is in fact alone entitled to payment, the party so excluded derives no right from the circumstances to the money paid to his competitor. It is not money received to his use, for the payment thus made does not in any respect affect his right still to call on his debtor for payment to himself, and it makes no difference whether such debtor is an individual or the government. The obligation of the debtor to him still remains wholly unaffected." That opinion was concurred in by all of the judges, and the principle above asserted fully applies to the present case. It is true that the parties in this case each presented their respective claims to a portion of these moneys to the auditor of the post-office department, and insisted upon his right to it, and the auditor decided that the defendant was entitled thereto, and directed its payment to him. His decision and direction did not conclude the rights of either party. It appears to be assumed by the counsel of both parties that he was acting under the act of congress of July 2d 1836, section 8, U.S. Statutes at Large, page 80, which provides that it shall be his duty to "receive all accounts arising in said department or relative thereto, to audit and settle the same, and certify their balances to the postmaster-general," and also provides that if either the postmaster or any person whose account shall be settled, be dissatisfied therewith, he may within twelve months appeal to the first comptroller of the treasury, whose decision shall be final and conclusive. *Page 457
This act only authorizes the audit and settlement of accounts, as between a claimant and the government. It gives no power to adjudicate upon the rights of parties or different individuals asserting adverse claims to such accounts, or their respective interests therein, and his action and decision in reference to such claims cannot affect either party as between each other.
This case is therefore not distinguishable from that ofPatrick v. Metcalf, supra, and I concur with the learned counsel for the respondent, that the facts herein show "that the defendant did not receive the money sought to be recovered to theuse of the plaintiff. He received it under a claim of right ashis own to his own use, denying the plaintiff's right, and it was paid over by the post-office department to the defendant in defiance of the plaintiff's wishes, and against all his efforts to the contrary. It is impossible, therefore, for any court, without ignoring the very truth of the case, to imply any contract or promise by the defendant to receive this money to theuse of the plaintiff, or to pay it over to him. The parties stand adverse to each other in all respects."
I am, therefore, of opinion that the judgment rendered in favor of the defendant at the circuit was right, and that of the General Term affirming it should be also affirmed, with costs.