[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 331
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 332 When this case was before the court on a former appeal, the judgment then under review was reversed, because the defendants were not allowed to show that the property which went into the special partnership belonged, in fact, to Rosenberg, and that the transfer to his sister was only a device to defraud his creditors. (Rosenberg v. Block, 102 N.Y. 255.)
Upon the second trial the evidence formerly excluded was received, and the question whether the alleged partnership between Rosenberg and his sister was a fraud upon his creditors *Page 334 was submitted to the jury, who found for the plaintiffs. No other question was submitted to them for decision, although the defendants requested the court to charge "that the jury may not find a verdict in favor of the plaintiffs unless they find that the defendants had received money from the sale of the goods mentioned in the complaint herein prior to the commencement of this action." The exception to the refusal to charge as thus requested, with other exceptions addressed to the same point, raise the most important question presented by this appeal. It was alleged in the original complaint that the defendants, as agents of the plaintiffs, sold the goods, and instead of remitting the proceeds, unlawfully converted them to their own use, but there was no allegation that the proceeds of the sale had been received. Subsequently, upon motion of the plaintiffs, the complaint was amended by striking out the allegation that the proceeds had been converted by the defendants, and alleging in the place thereof that the proceeds had been received by them. The reason for this change, as stated by the attorney for the plaintiffs in the affidavit upon which the motion was based, was "that the plaintiffs seek to recover only on contract and fear that if the said allegations remain, the complaint may be construed as founded on tort." In another affidavit used by the plaintiffs on a motion for a commission to take testimony, it was stated that "this action is brought to recover moneys received by defendants as proceeds of goods delivered to them by plaintiffs to sell on commission." Thus the complaint of the plaintiffs, as formally interpreted by them, sets forth a cause of action for the proceeds received by the defendants for goods sold. This, as we think, is the proper interpretation. The plaintiffs do not attempt to disaffirm the sale and to make the defendants liable for breach of instructions or for conversion, but ratifying the sale, they seek to recover the proceeds received. (Scott v.Rogers, 31 N.Y. 676; Laverty v. Snethen, 68 N.Y. 522.) Thus the action is for money had and received, and hence it was incumbent on the plaintiffs to show either that the defendants had actually received pay for the goods, or such a state of facts as would *Page 335 preclude them from denying that they had received it. (Nat.Trust Co. v. Gleason, 77 N.Y. 400; N.Y.G. I. Co. v.Gleason, 78 N.Y. 503; Byxbie v. Wood, 24 N.Y. 607; 2 Greenl. Ev., § 117; Abb. Trial Ev., 275.)
There was no direct evidence tending to show that the defendants had received payment for the merchandize in question at the time the action was commenced. It appeared, however, that the goods were sold as early as August 16, and that the action was not commenced until October 6; that the defendants made a credit on their books to Rosenberg's individual account prior to the latter date, although the plaintiffs repudiated that act; that on the 19th of August they reported the goods as sold, without stating that they had been paid for, but giving no reason for not remitting pursuant to request, except that "you owe us about $900 more than the goods in question amounted to," and "we are satisfied after a little reflection you will conclude you are not entitled to any remittance."
On the other hand, one of the defendants testified: "We sold said merchandize prior to August 19, 1882. The purchaser did not keep the goods but returned them to Block Lindheim, who resold the goods. Such resale was a final sale of the goods, and took place prior to the commencement of this action. The aggregate amount at which said goods were finally sold by our firm was $600. Neither the firm of Block Lindheim nor anyone on its behalf ever received anything on account of the sale of said goods prior to the commencement of this action. Whatever moneys were received by my said firm on account of the sales of said goods were received since this action was commenced. * * * We sold the goods on time and charged them on our books. We applied what we received to Rosenberg's old indebtedness. We received $600. We made the credit on our books before the commencement of this action."
We do not think that the evidence was so conclusive as to authorize the learned trial court to withdraw from the jury the question whether the defendants had actually received the proceeds *Page 336 of the goods, or whether they were by their acts estopped from denying it. While their omission to state, in their letter to the plaintiffs reporting the sale, that the goods had not been paid for is significant, we do not regard it as controlling. There is no evidence that the plaintiffs relied upon the letter or that they were misled thereby. While the jury was not bound to accept the statement of the defendant who testified, they should have been permitted to consider it and, comparing it with the facts tending to show that the goods had been paid for, to draw such inferences as in their judgment the entire evidence warranted.
The learned General Term, in its discussion of the subject, said that the action for money had and received is in its nature an equitable one, and can be maintained when it is shown that the party either has or ought to have, and therefore in law has, the money in his possession, and cited Risdon v. De La Rue (19 J. S. 63; 98 N.Y. 653), as authority for the proposition. In that case the plaintiff sold a bond and mortgage to the defendant's testator, who paid therefor the entire amount of principal and agreed to pay the interest in arrear "when the same should be collected." The mortgage was subsequently satisfied by the defendant without collecting the arrears of interest, and in an action for money had and received it was held that as the defendant, who was the only one who could collect the arrears, had voluntarily and in the most formal manner, by the satisfaction of the mortgage, acknowledged the receipt of the whole amount, she must, for the purposes of that action, be taken at her word. While that case was well decided we do not regard it as analogous to this, because the defendants herein did not give a receipt stating that the goods were paid for. If this had appeared it might well be said that they either had, or ought to have had, the money.
But it is urged that as the defendants were not authorized to sell on credit, the admission of a sale by them implies a sale for cash. It is not clear from the correspondence between the parties that a sale on credit was not authorized by the plaintiffs, *Page 337 but, assuming that it was not, the presumption from a simple report of sale would doubtless be that it was for cash. This presumption, however, would not be conclusive, but would be for the consideration of the jury in connection with all the evidence in the case. The plaintiffs, in their election of remedies, made choice of an action in which the fundamental fact essential to a recovery is proof that the defendants received money belonging to the plaintiffs, or to which they were entitled. (Nat. Trust Co. v. Gleason, supra.) While there was evidence tending to show this, as the fact could only be inferred from circumstances and there was a conflict in the testimony, a question was presented for the jury.
The plaintiffs were allowed to show by the cross-examination of the plaintiff Rosenberg, whose testimony was taken upon commission at the instance of the defendants, that his assignment for the benefit of creditors had not been attacked as fraudulent by any person or persons except the defendants. This was objected to as incompetent, irrelevant and immaterial and as calling for a conclusion, but the objection was overruled and the defendants excepted. While we have grave doubts as to the correctness of this ruling, we simply call attention to the subject without giving it further consideration as the views already expressed lead to a new trial.
The judgment should be reversed and a new trial granted, with costs to abide event.
All concur, except HAIGHT, J., not sitting.
Judgment reversed.