Morris v. Hofferberth

McLennan, J.: Early in the year 1901 the plaintiff purchased from one William E. Upton of the city of Hew York, for the sum of about $9,000, a lumber business located in One Hundred and Thirty-eighth street [514] in said city. It consisted of lumber of various kinds, the use of a yard where' it was stored, horses and wagons for delivering the same, an office and all other facilities for conducting such business. Immediately on making such purchase the plaintiff put in charge of the business one H. L. Garwood, to manage and run the same, as •his agent. He was authorized to sell the lumber at such price and upon such terras as he saw fit; to receive cash or the checks of any purchaser in payment for the same. Garwood was to receive for-conducting such business and disposing of the lumber one-half of the net profits arising from the same. He was authorized to employ such help or assistance as was necessary, and to pay for the same out. of the avails of the business, yielding or accounting to the plaintiff for only one-half of the net profits of the enterprise. By the arrangement made between the plaintiff and Garwood no agreement was made in respect to what should be done, and the rights of the respective parties, in case a loss resulted from the management of the business. The plaintiff testified in substance that the question of loss was not mentioned, because they expected a profit would be made.. To facilitate the conduct of the business by Garwood, the plaintiff furnished to him his .stationery and billheads, in whicli .he, Garwood, was designated as plaintiff’s agent, and apparently the whole thing was placed in his hands and charge, the plaintiff giving very little personal attention to it. He apparently trusted Garwood implicitly, they having had business relations before, and placed it. absolutely within his power to convert to his own use the entire proceeds or avails of the business. In the regular course of the conduct of the business Garwood, as plaintiff’s agent, as is conceded he had a right to do, sold to defendant about $2,719.34 worth of lumber during the year 1901. The first sale to the defendant, which was made January 24, 1901,, amounted to $39.59, and was paid for by the defendant by delivering his check, payable to the order of the plaintiff, to Garwood, and the bill was receipted as paid. The check was sent to the plaintiff, was indorsed by him and was paid in due course. The rest*of the lumber sold to the defendant by Garwood, as; agent for the plaintiff, was sold during the months of April and .May, 1901, and amounted in the aggregate, to about the sum of $*2,400. This the defendant paid for as before by delivering his check or checks to Garwood, payable [515] • to the order of the plaintiff, and Garwood receipted for the payment of such lumber. Such checks Garwood indorsed by writing upon the back thereof “ O. W. Morris. H,. L. Garwood.” Such checks so indorsed were presented by Garwood at the bank where they were made payable, and the defendant having money to his credit at such bank, the same were paid and in due course were delivered up and surrendered to the defendant by said bank. Garwood, instead of crediting the amount of said checks to plaintiff’s account, Or paying over the proceeds to him, converted such proceeds to his own use and left the country. This action is brought to compel the defendant to again pay for the lumber which he purchased from the plaintiff through his agent Garwood. The only question submitted to the jury by the learned trial court was whether or not Garwood had authority to indorse the checks in plaintiff’s name and for and on his behalf, The jury found that the agent had such authority, and we think the evidence amply justifies such finding. It is true the plaintiff testified that no express authority had been given to Garwood to indorse checks made payable to his order, and to receive the proceeds thereof, and, in substance, that Garwood had in fact no authority to indorse such checks by writing plaintiff’s name upon their back. The plaintiff was not a disinterested witness and, therefore, his evidence, although not contradicted specifically, was not conclusive. The jury had the right, as was pointed out by the learned trial court, to consider the relations which existed between the plaintiff and his agent in respect to the business in question, as well as the relations which existed between them in respect to former transactions. They had a right to consider the method adopted for the conduct of the business in hand; the fact that Garwood was placed in sole charge; that he had the right not only to make the price, but also to prescribe the terms upon which the lumber could be purchased, whether for cash, by check or upon credit. The jury also were justified in taking into consideration the fact that the agent, Garwood, by the terms.of his agency was authorized to apply the proceeds of the sales made by him to the payment of the expenses incident to the conduct of the business. Considering these and many other circumstances disclosed by the evidence, which might be pointed out, we think the jury were amply justified in finding, as they did, that the [516] agent Garwood in fact had authority to indorse the checks in question by writing plaintiff’s name upon their back. If so, it follows as matter of course that the judgment in, favor of the defendant should be affirmed. Having reached the conclusion above indicated upon the facts, we deem it unnecessary to express any opinion upon any other question presented- by this appeal. Judgment affirmed with costs. Spuing-, J., concurred; Adams, P. J., and Hash, J., concurred in separate opinions; Hiscock, J., dissented in an opinion.