Burnham v. Fisher

The opinion of the court was delivered by Bennett J. Though the plaintiff’s clerk was clothed with extensive powers in regard to the management of his principal’s business; yet there is no reason to suppose, (notwithstanding what Was said in argument,) that the plaintiff was in any way privy to the gambling between his clerk and the defendant; and the question is, can the plaintiff follow the money, lost by the clerk, into the hands of this defendant ? The plaintiff’s money was wrongfully taken by the clerk, and passed into the hands of this defendant, without consideration. The gambling contract between the clerk and the defendant was against law and null; and the plaintiff may well say to the defendant ; “ You took the money subject to my right, and in equity and good conscience, you cannot retain it against me.” If the clerk had passed the money to the defendant upon a valuable consideration, and bona fide on the part of the defendant, though in bad faith on the part of the clerk, as it respected his principal, the question would have been quite a different one from the present one. The plaintiff cannot, under the present circumstances, be divested of any rights, and the defendant must respond to him the money which he has illegally obtained the possession of. It is said, that so far as the clerk borrowed the money to gamble [521] with, though upon the plaintiff’s credit, yet it never became his money, and that, at all events, so far, the plaintiff cannot recover. But there can be no distinction. The clerk had been in the practice of borrowing money upon the credit of the plaintiff, for his legitimate business, and had authority so to do. The lender in the present case acted in good faith, though the clerk acted in bad faith, and the lender cannot be responsible for the perversion of the funds by the clerk, and the plaintiff was liable for the money borrowed, and has in fact repaid it. Upon such a state of facts, the money borrowed became the plaintiff’s, to all intents and purposes. If not his, whose was it? It did not continue to be the money of the lender, and it would be strange, if it became the money of the clerk. We see no objection to the admission of the deposition of the clerk, after the execution of the release! of his interest. The release was executed by the plaintiff and also by his assignee, and its form has not been objected to. There can be no doubt of the authority of the releasors to execute the release. The claim which the plaintiff might make for the money against the clerk, was not, as I understand it, assigned for the benefit of creditors ; and if it had been, it would not, probably, have altered the case. The release, it appears, was delivered to the witness before his deposition was taken. The judgment of the County Court is affirmed,