Carew v. Otis

Thompson, J.

delivered the opinion of the court. The facts stated in this case are not sufficient to sustain the present action. The defendant was a mere stake-holder of the money, which was the subject of the former suit. The plaintiff who had an interest in the money, settled the dispute with respect to its disposition ; this was done without the agency or interference of the defendant; and on such compromise he paid over the money, according to the terms of the settlement, which must be considered as done pursuant to the direction and orders of the parties interested in it, and as equivalent to a payment to themselves. The defendant having had no agency in the compromise, it is perfectly immaterial, as it respects his liability, whether or not the plaintiff was deceived or defrauded in that settlement. Mo notice was given to the defendant of the pretended alteration of the notes, until after he had paid over the money, and it would be unjust in the extreme, to make him responsible for the negligence of the plaintiff, or the misrepresentations of Lanman, with whom ^10 mac*e t^e settlement. If Lamnan could be considered the agent of the "defendant, the subsequent conduct of the latter, in paying over the money pursuant to the compromise, might-be deemed a ratification, arid makehim responsible for the fulfilment of the contract; but-every part of - the caseexcludes the idea of the defendant’s- having had any interest in the controversy. He was not only, in fact, a mere nominal party, but this was known to, and well understood by the plaintiff. The case states explicitly, that the first suit, which was the subject of the settlement, was defended at the instance anj^ for the benefit, of Dewitt and others, and that ■ this was known to the plaintiff. - Lamnan acted as the known and avowed agent of Dewitt and others. The plaintiff contracted with him in that capacity ; and if the contract has not been complied with, a remedy must be sought either against the principals or their agents, and not against one who had no concern in the transaction. This objection, without examining any of the other points, goes to the whole merit of the plaintiff’s claim, and would entitle the defendant to judgment, but acccording to the terms of the case,,we can only set aside the verdict and award a new trial.

New trial granted.