Houston v. Shindler

By the Court, Willard, P. J. The facts disclosed on the last trial obviate all the objections to the plaintiff’s right of recovery, which existed when the cause was before the court of [40] appeals. As required by that court, the plaintiff showed, in addition to the language of the contract, the acts of the defendant in taking possession of the lumber and converting it to his own use. The statute of frauds therefore presents no barrier to a recovery. The objection now is, that as the plaintiff’s agent gave a receipt in full, for a worthless check, on settling the first suit, no subsequent action can be brought for the same cause. Although the receipt purported to be for “ forty-one dollars in settlement of suit,” it was competent for the plaintiff to show, in explanation, what was in truth received. The consideration of a receipt is always open to explanation. (Eggleston v. Knickerbacker, 6 Barb. S. Court Rep. 458) In this case, the check for which it was given was of no value. The plaintiff acquired nothing from it. He had a right therefore to fall back upon his original cause of action, as if nothing had been paid. Nor did the defendant lose any thing by crediting the amount of the check to House. He parted with no money or new consideration on account of it, but merely gave House credit for that amount on his book. This account against House is now as good as it was before such credit. It was probably worth nothing then or since, as House was insolvent in 1842, and subsequently obtained his discharge in bankruptcy. If the judge was right in charging the jury that they might find, from the conduct of the parties, a ratification of the acts of their agents, there is no ground to disturb the verdict. The defendant, when he took away the lumber, well knew the nature and terms of the settlement. By taking it he assumed that the title to it was vested in himself. There can be no stronger ratification of the act of an agent, than the principal’s availing himself of the benefit of such act, although unauthorized. (Dunlap’s Paley on Agency, 171, notes. Clark v. Van Riemsdyck, 9 Cranch, 153. 4 Mason, 296. 17 Mass. Rep. 97.) It was well said by Spencer, Ch. J. in Skinner v. Dayton, (19 John. 554,) that “Both at law and in equity, the subsequent assent of the principal to the acts of the agent in relation to the interests and Affairs of his principal, is equivalent to a positive and direct authorization to do the act.” [41] [Montgomery General Term, May, 1851 Willard, Hand and Cady Justices.] As the judge was thus right in the direction he gave, he could not have been right had he charged as the defendant’s counsel requested. The law gives no countenance to the legerdemain, by which an obligation can be discharged by a check of a bankrupt on a bank without funds to meet it. The other exceptions were all frivolous. The motion for a new trial must be denied.