Hayes v. Kedzie

Bockes, J. : By pleading to tbe merits, tbe defendant must be held to have withdrawn or abandoned bis demurrers. (Peck v. Cowing, 1 Denio, 222 ; Irvine v. Forbes, 11 Barb., 587 ; Harper v. Leal, 10 How., 276 ; Jones v. Thompson, 6 Hill, 621.) Tbe ease must be examined on the issues raised by tbe answer to tbe merits. It is urged tbat tbe appeal in tbis case was on tbe law only, that it was not a case for a retrial in tbe County Court, for tbe reason tbat tbe claim litigated did not exceed fifty dollars. (Code, § 352.) Tbis point was not raised in tbe County Court, either by special' motion, as in Houghton v. Kenyon (38 How., 107), or by objection on tbe trial, if indeed it could have been made available there in either mode. True, tbe defendant moved for a nonsuit at tbe close of tbe trial, on tbe ground tbat tbe court bad no jurisdiction of tbe appeal, but for what particular reason does not appear. Tbe motion was therefore baseless, in so far as we can see. But tbe case was one for retrial. Tbis question was to be determined from tbe pleadings. By tbe complaint, tbe plaintiffs’ claims for which judgment was demanded exceeded fifty dollars. Sucb claims determined tbe right of tbe parties to a retrial on tbe appeal. (Code, § 352 ; Ovenshire v. Adee, 27 How., 368 ; Hobbs v. Wetherwax, 38 How., 385 ; [580] Thompson v. Pine, 12 N. Y. Sup. Ct. Rep. [5 Hun], 647.) The case is, therefore, before us on the merits. It was undisputed on the trial, that the draft was duly made out for Hayes, Borrill & Oo., on the treasurer, payable to the firm or bearer, and that the defendant took it into his possession to deliver to the payees; also, that it was afterwards presented to the treasurer and was paid by him in due course of business. The principal question litigated, was whether the defendant made delivery of the draft to the payees, as he, assumed to do. The jury found that he did not, and it may be added that by the verdict, it was found also that the payees never received payment of the draft from any quarter. Then the case is this : (1) That the defendant took the draft for the payees, to be delivered by him to them ; (2) that he omitted to make delivery of it; (3) that it was afterwards presented to the drawee for payment by some one other than the payees, and was paid by him in due course of -business ; and (4), that when called upon by the payees for the draft, the defendant took the ground that he had delivered it to them in fact. These facts made out a prima faoie case against the defendant as matter of law. Thus the onus was cast upon him to show something, discharging him from liability. The plaintiffs had made application to him for the draft, and could not obtain it. The rule was laid down in Coykendall v. Eaton (37 How., 438-441) that a mere gratuitous bailee who delivers the property to a wrong party, or, who after demand does not in any way account for its loss, is liable to the true owner for its value. Now what defense did the defendant interpose? First, that he had in fact delivered the draft to the payees. But the jury found againt him on this issue. Secondly, he sought to show that he delivered it to Mr. Russ, as if this fact if proved would discharge him. But as to this even, there was a conflict of evidence, and the jury may have found against him also on this issue. Indeed, if the case turned upon this issue such must be deemed to have been the finding. It was going quite as far as the court could properly go in this case, holding in mind the evidence submitted, to instruct the jury that delivery to Russ would discharge the. defendant in case, the payees authorized such delivery or gave it ratification, for it might well have been insisted that there was no evidence whatever of such authorization or ratification. Now the [581] onus was on the defendant. It lay with him to relieve himself from liability. This he might do by showing the loss of the draft withoiit gross negligence on his part, or that it was taken from him by force or fraud. But neither of these defenses was attempted. He put his defense at all times when called upon to answer for the draft, on other grounds, to wit, that he had made delivery to the payees or to Buss. This was what he claimed when approached upon the subject before the suit was commenced, and this was insisted upon in the pleadings and on the trial. In this defense he failed. The jury found against him on a very serious conflict of evidence. He must be held to be concluded by their verdict. It is urged that the plaintiffs failed to show any title to the draft, that it was never delivered. But the defendant is not at liberty to hold this position. He assumed an agency and duty in regard to the draft which the plaintiffs might recognize, and to which they might bind him by a ratification. It has been repeatedly held that where one party assumes the performance of a trust or duty for the benefit of another, although without his knowledge at the time, the latter may affirm the trust or duty and enforce its due performance, (Commercial Bank v. Warren, 15 N. Y., 577-580 ; Heermans v. Clarkson, 61 id., 171.) Here the plaintiffs have elected to hold the defendant to the obligation he assumed to perform for their benefit. The case is therefore the same as if the defendant, on the plaintiffs’ request, had taken charge of the draft to make delivery of it to them. Thus the draft became the plaintiffs’ property in the hands of the defendant, and he was liable to them for it to the extent of the obligation which he assumed. The conclusion reached on this examination of the case,'based on .the verdict of the jury in favor of the plaintiffs on every material question of fact, necessitates an affirmance of the judgment. And it may be here remarked that the view above taken of the ease leaves no question for consideration on the exceptions to the charge of the judge or on his refusal to charge as requested. The judgment must be affirmed, with costs.