While Dockendorff was undoubtedly the agent of the defendant to procure loans, yet he was also the agent of the plaintiff for some purposes. I cannot agree that the defendant did not have the right to make the payments which it did to Dockendorff. Plaintiff was under an express written contract to make such payments to Dockendorff, and it did, over a long-continued course of dealings, exactly what it was under contract to do. Defendant was first obliged to make such payments by the certificates of indebtedness, accepted by the plaintiff, which thereby ratified and acquiesced in the provisions thereof, all of which contained this printed matter: “ That if any checks or money due on the account hereby assigned shall at any time come to the undersigned [the defendant] such checks or money shall be accepted by the undersigned as the property of the institution or person lending the money hereon, and be immediately transferred to John E. Dockendorff.”
In so far as the accounts were due, the Circuit Court of Appeals, Sixth District, says: “ Whenever an assigned account was paid to the defendant, the proceeds were to be remitted to Dockendorff. The banks knew of this arrangement, and by accepting the certificates of indebtedness with this agreement endorsed, they acquiesced. Clearly, Dockendorff became their agent for this purpose.” (International Banking Corporation v. McGraw Tire & Rubber Co., 259 Fed. Rep. 381.) Secondly, defendant was obliged so to do by the written contract between Dockendorff and the defendant, which was made part of Dockendorff’s contract with the plaintiff, and the notices specifically provided that they were given pursuant to, and interpreted by, this agreement. This contract of 1907 provided:
*610“ 10. That if any account receivable is found unsatisfactory to any lender to whom it has been assigned as collateral security, it may be rejected by such lender, and if so rejected the party of the first part shall pay the amount thereof immediately to the party of the second part (Dockendorff) for such lender.”
Thirdly, by the long-continued course of dealings during seven years, wherein Dockendorff collected all the moneys on the accounts receivable, in accordance with these written documents. Fourthly, plaintiff relied upon payments being made to Dockendorff and bound Dockendorff by a contract to make payments to it. And fifthly, Dockendorff was borrowing for the defendant from eleven lenders, and the defendant had no means of knowing to whom any particular account was assigned, and hence the lenders were really the undisclosed principals holding out Dockendorff as their agent, at least to receive payment. If for any reason defendant had. made payments other than to Dockendorff, Dockendorff could have compelled the defendant to pay a second time to him, The note in suit was payable to Dockendorff in Dockendorff’s office, which was the place appointed by all parties where all payments and adjustments were to be made.
It is thus seen that any question of notice to the defendant as to the reassignment of the account was rendered nugatory by the express acts of the plaintiff in constituting, as above noted, Dockendorff as its agent to receive payments. The Circuit • Court, of Appeals, in International Banking Corporation v. McGraw Tire & Rubber Co. (supra), made a distinction between accounts due and those not due, but as subdivision 10 of the 1907 contract, especially provided for payments to Dockendorff on accounts which might not have become due, I am unable to so distinguish. In Presser v. Central Trust & Savings Co. (189. App. Div. ,721; affd., 232 N. Y. 573). the Court of Appeals was precluded from a consideration of the merits of the controversy by unanimous findings of fact, chief among .which was that Dockendorff was not the agent of the bank but was the agent of the borrower to receive the payments, and hence the Court of Appeals had no other. alternative than to affirm. In the ease at bar, at least a question of fact was presented, and there is ample evidence to sustain the findings of the referee.
■ The judgment should, therefore, be affirmed, with costs.
.Merrell, J., concurs.
, Judgment reversed, with costs, and judgment directed for plaintiff, with costs. Settle order on notice.