Evans v. Wilcox

By the Court,

Campbell, P. J

The decision of the referee was clearly right. The defendant obtained the money sought to be recovered in this action, and executed the following instrument ; “ Received, Deposit October 8, 1859, from Henry Sheldon at the hand of Henry Evans, eighty-five dollars, which I promise and agree shall be indorsed on bond and mortgage known as the John Peters mortgage, which I have an interest in.” It was both admitted and proved that this money was never indorsed on the bond and mortgage, and there is no pretense that it was ever repaid. The action is for a breach of the contract. It is very clear that the defendant never fulfilled the contract. She had no legal title to or control over the bond and mortgage. They had belonged to the estate of her father, and the executors of her father’s estate had assigned them to one Mrs. Elizabeth Peters. How the latter held them—on what trusts or conditions—does not appear; nor does it appear whether the defendant under her father’s will was entitled to a certain portion of this bond and mortgage, or to a certain sum of money, .or to a certain undivided portion of Ms estate. The bond and mortgage was transferred by Mrs. Peters and came into the hands of a bona Me holder for full value, and on payment of the amount appearing due, and without deducting the $85. A junior mortgage was foreclosed and the property sold subject to the. mortgage referred to in the receipt, and without any deduction or credit of the $85. When Mrs. Peters sold the bond and mortgage a portion of the proceeds was paid to the defendant, and in the settlement no credit was given by the defendant for this $85, and no reference made to it.

The case is very different and clearly distinguishable from Seymour v. Lewis & Whitney, (19 Wend. 512.) In that case the defendants were the owners and holders of the bond and mortgage. They gave a receipt wMch was, says Mr. Justice Bronson, “ for so much money to be indorsed when the note was paid.” The court held that when the note was paid it was a satisfaction of so much of the mortgage debt, and that the assignee took the mortgage subject to all equities. The action was assumpsit to recover back the money paid. In this case the defendant was not the holder; nor was she the owner. At most she only had some equitable or beneficial interest in the mortgage. She entered into an express contract that the money she received should be indorsed on a mortgage which she did not pretend to own, but which she only claimed to have an interest in. That contract she has not fulfilled, and this action is brought to recover damages, for its breach. But it is said that Mrs. Peters, who it is claimed was at the-time the holder of the mortgage, authorized the defendant to procure the money on her account as such holder. Now the defendant says that Henry Sheldon, the plaintiffs’ testator, was present when she received the $85, and when of course the arrangement was made. Her examination as a witness was therefore objected to. But even if we admit it I do not think it proves any such arrangement or agreement. She testifies that Mrs. Peters owed her and told her to go to Mr. Evans, the agent of Sheldon, and get money which she owed her on the mortgage, and that she went to Evans and got the $85 and gave the receipt. There is not a word to the effect that she communicated her authority, or that there was any agreement or understanding that the money was paid through her to Mrs. Peters. On the contrary the receipt, or rather agreement, which the defendant executed, tends strongly to show that the money was paid or advanced to the defendant exclusively on her own account and credit; Sheldon and Evans knowing, either from previous information or being then informed that she, the defendant, had some interest in the mortgage, and relying upon her good faith and ability to have the proper indorsement made.

[Broome General Term, January 27, 1863.

Campbell, Parker and Mason, Justices.]

In any event the decision of the referee was right. In my opinion the defendant has established no defense, either legal or equitable, and the judgment should be affirmed with costs.