McKay v. . Draper

Marvin, J. There is no exception to the findings or decisions of the referee; but there are numerous exceptions to the rejection-of evidence offered to show the consideration of the agreement between the-plaintiff and Vincent: that Vincent .was a mere agent of Blake, or Blake and Hall: that the money belonged to Blake: that Vincent acted in fraud of Blake’s rights in giving the order for the money; and that the plain: tiff cooperated in such fraud, without connecting Draper with these' facts. Such offered evidence was properly excluded. There was no privity between the defendant and Blake, or any persons other than McKay and Vincent, and the defendant could not set up title in any other person in defence so long as he retained the "money, or make himself a party to controversies between his bailors and third persons. It is a general rule that an agent cannot defend against the action of his principal by setting up the title of others, so long as he retains the property. If he chooses to take the responsibility of delivering the property to a third person who claims it, and such person has a legal right to the property, he may do so, and show this in defence. (1 Pars. Cont., 677, et seq., and cases cited in the notes.) In a proper cáse, an action of interpleader can be maintained. And the Code' has provided a more simple remedy, by which the defendant in this case, after the action was commenced, and before answer, could have applied to the court for an order to substitute Blake in his place, and discharge him from liability on depositing in court the money. The court, in its discretion, can make such order. (Code, § 122.) There is another answer to this appeal. There was no issue made by the pleadings under which the defendant was entitled *261 to make the defence claimed to be valid. The judgment must be affirmed. Davies, Wright, Selden, Emott and Balcom, Js., concurred.