Herrick v. Gallagher

Mullin, P. J. An express company may receive a parcel to be delivered to the consignee only on payment of the sum directed to be collected upon it. And if the consignor forbids the consignee to inspect the contents of the parcel until such payment is made, it is the duty of the company to obey the direction. But if the company should, in violation of the prohibition, permit an examination of the contents of the parcel, and the consignee should refuse, without cause, to receive it and pay the sum required, it may be the company would be liable to the consignor for damages.' It is unnecessary to consider that question in this case. But if an inspection is permitted, and the contents are found to be valueless, it may be safely declared that the company would not be liable in damages to the party who was guilty of the attempt to defraud the consignee. It is also true, that if the consignee should pay the^ charges, and then, on opening the parcel, should find the contents to be of no value, he would be entitled to recall the money paid, at any time before it was paid over to the, consignor. The agent would be liable to refund, if thef, money remained in his hands at the time it was demandedH by the consignee. The illegality of the transaction would j be a perfect defense to the company against the consignors. (Story on Agency, § 235; id. § 300 and note 2, 301.) It is quite manifest that the money paid by the defendant was in Miss Herrick’s hands when the box was returned and the money demanded. There could not have been any payment to the consignors before the demand. If the agent of the plaintiff would have been personally liable to Hintermyre for the money, on the discovery of the fraud, she might return it, and thus shield herself from liability. There could be no recovery by the consignors against the express company or the plaintiff This fraud intended and attempted, was a perfect answer to the action. The judgment of the county court and of the justice, must be reversed. — 576 — Johhsoh, J. The judgment in this case is manifestly erroneous. It arrays the law of the land on the side of the swindler, and makes it an instrument in his hands to further his schemes of fraud, and effectually despoil his victim. This is the most prominent feature of this" case, at first sight; and it is difficult to see by what obliquity of view, or technical glamour, it avoided discovery either upon the trial before the justice, or on review, in the county court. The money was not the money of the plaintiff, and he had no right to it, except as agent or bailee of the rogues in Yew York, who forwarded the package by the American Express Company, of which the plaintiff was agent. Were these persons, “A. J. Greer & Co.,” lawfully entitled to this money ? If the plaintiff, or the express company, are allowed to collect it, it can only be for the purpose of paying it over to these persons, less the charges for carriage and collection. The transaction, on the part of A. J. Greer & Co., was the most bald and naked piece of swindling imaginable. The law will lend no aid in the collection of -moneys for the satisfaction of such claims. ' The fact that the plaintiff and the express company were innocent agents in the perpetration of this wrong, until after their contract was fulfilled by delivery of the package and the collection of the charges, makes no difference. Their innocence does not purge the transaction of the fraud of their principals. Yor will the promise of the defendant, to “ make it right” with the plaintiff, on receiving back the money, avail anything in a case like this. The question is, what is “ right,” in such a case. This the law determines. The defendant, in receiving back the money from the plaintiff or his agent, to whom it had been paid on the delivery of the package to Hintermyre, was confessedly acting as the agent of the latter, who was an infant. It was clearly the duty of the plaintiff to pay back the money, after the box was opened and the knowledge of the fraud was brought home to him, — 577 — if the money was then in his hands. He could no longer, \ in equity and good conscience, retain it, even for the pur- j pose of paying it over to those who had used him as their Í innocent tool, to carry out their unlawful scheme. By refusing to restore the money, while it was yet in his hands, after the nature of the transaction had been fully made known to him, and was so apparent, he might have been held to sanction the transaction, and to make himself a willing party to the fraud. The plaintiff’s agent having properly returned the money on the discovery of the fraud which had been practiced, the plaintiff cannot be allowed to recover it back, even upon the defendant’s promise to make it right. It was made right when the money was returned. It is suggested, rather than argued, that the defendant and Hintermyre are particeps criminis, with the plaintiff’s bailors. But this, if true, would, not aid the plaintiff to recover the money for such principals. There is, however, no evidence of this; nor is there anything in the case to show that either the defendant or Hintermyre designed to defraud any'third person. Both Hintermyre and the defendant, who advised with him, in ordering the pretended prize to be forwarded, ought, undoubtedly, to have known better than to be tempted by such a transparent bait. But the law does not place mere credulity on a par with fraud, nor allow it to be preyed upon with impunity by craft and knavery. The judgment of the county court, and of the justice, must be reversed. Talcott, J. (After stating the facts.) The questions mostly discussed in the court below seem to have been, as to the authority of the housekeeper to receive back the box and return the money, and as to whether the action could be maintained against Gallagher, he acting only as the agent of Hintermyer. In our view, the discussion — 578 — of these questions is wholly unnecesssary. The case is controlled by a well settled doctrine in the law of principal and agent. The express company which brought the box to Low-ville, and the plaintiff, though not cognizant of the fraudulent character of the transaction, were nevertheless the agents of the parties in Hew York, for the purpose of transporting and delivering the box to Hintermyer and collecting the money of him. It was a fraudulent contrivance > obtain the money of Hintermyer by false pretenses. Ho doctrine in the law of agency is better established an that which is laid down in Story on Agency, (§ 300,) • follows : “If a party who has paid money to an agent, r the use of his principal, becomes entitled to recall it, •; may, upon notice to the agent, recall it, provided the -out has not paid it over to his principal, and also proded that no change has taken place in the situation of ■ e agentsince the paymentto him and before such notice;” = .d as is said by the court, in Hearsay v. Pruyn, (7 John. 79,) “ an action may be maintained against an agent who ias received money to which the principal had no right, .7 the agent has had notice not to pay it over.” - This principle has been repeatedly applied in cases where the money has been paid to the agent by mistake ; <■ fortiori is it applicable where it has been procured by ¡he fraud of either the agent or the principal. (See Cox v. Prentice, 3 M. & Sel. 345 ; La Farge v. Kneeland, 7 Cowen, 156 ; Mowatt v. McLelan, 1 Wend. 173.) The rule laid down in all the cases is, that in order to protect the agent, he must have paid over the money to his principal, or in some way have changed his situation since .lie payment of the money to himself, upon the faith of ¡•ueh payment. In this case it is not pretended that the plaintiff" had paid over the money to the consignors or the express company, either before or after the payment to — 579 — him. In answer to a question on that subject, he says that he had, at the time when he took the box, the amount in the hands of the express company. The case is similar in principle to that of Buller v. Harrison, (Cowp. 565.) There, a claim was made by parties in Hew York, through their agent in London, upon the underwriters, for the alleged loss of a vessel. The underwriters, supposing the loss to be fair, as did the agent, paid over to the agent the amount of the policy. After-wards discovering the loss to be foul, they gave notice to the agent, and sued him to recover back the money. The agent had credited the money in account with his principals, as against a larger sum in which they stood indebted to him, but had given no new credit, and accepted no new bills. It was held, Lord Mansfield delivering the opinion of the court, that the plaintiffs were entitled to recover. Here, the money was obtained by a palpable fraud, of which the express company and the plaintiff, though the innocent instruments, were nevertheless the instruments and agents, through whom the fraud wTas perpetrated. There is no doubt but the plaintiff or the express company, whichever had received the money, would have been liable to the defendant in an action to recover it, on being notified of the fraud, and a demand that the money be refunded ; and no doubt the identical money, if it were traced, as it was in this case, could have been replevied. The defendant, Hintermyer’s agent, having regained possession of the money, is under no obligation, legal or moral, to restore it to the plaintiff; neither is the plaintiff liable to the consignors or the express company. The charges for freight follow the principal sum. Hintermyer was under no obligation to pay the freight, and the freight money was an incident of, and obtained by, the same fraud as the larger sum. The plaintiff and the express company have been im — 580 — posed upon by the consignors, and must look to them for redress. [Fourth Department, General Term, at Syracuse, November 13, 1871. The judgment of the county court, and of the justice, should be reversed. Judgment reversed. Mullin, P. J., and Johnson and Talcott, Justices.]