Yourt v. McKee

Boreman, J., delivered the opinion of the Court: John Cole delivered to Hugh McKee a sum of money to be carried by said McKee to the bank, and there deposited to the credit of said Cole. He took the money to the bank, but instead of placing it to the credit of Cole, he deposited it to the credit of McKee & Duncan, a partnership firm of which said McKee was a member. The firm afterwards dissolved, and Cole sued the partnership for the amount and obtained judgment in the District Court, from which the Defendant, Duncan, appeals to this Court. McKee never appeared in the case. [283] Cole having died during the pendency of the suit in the Court below, the canse was revived in the name of his Administrator. In reviewing the evidence in this case, we cannot perceive that Cole ever intended to part with his property in the money. The very reverse seems to have been the case. McKee was to take Cole’s money and place it to Cole’s credit. As long, therefore, as it remained in McKee’s hands, it was Cole’s money. In other words, McKee’s possession was Cole’s possession, and Cole never parted with that possession until McKee & Duncan received it. The money was not loaned to McKee; nor was any credit given to him in regard to it. He acted solely as the Agent of Cole. He violated his instructions as Agent, and made a wrongful deposit of Cole’s money; and McKee & Duncan having received it to their use and benefit, as admitted by Duncan, they became responsible for its re-payment to Cole. We therefore see no error in the action of the Court below. The judgment and order are affirmed, with costs. Emerson, J., and White, C. J., concur.