Opinion
June Term, 1903.
Judgment of the Municipal Court affirmed, with costs.
In 1901 the plaintiff entered into a contract with Woodbury Lowery by which the plaintiff agreed to purchase certain real estate from Lowery for $11,500, of which sum $500 was to be paid upon the execution of the contract. The defendants, a firm of attorneys doing business under the name of Blackwell Brothers, represented Lowery in the transaction, and the $500 was actually paid by Mr. Francis G. Moore, an attorney representing the plaintiff, to Mr. George E. Blackwell, one of the defendants, as the agent and representative of Lowery. Subsequently Lowery refused to convey the property in accordance with the terms of the agreement, and the plaintiff sued him in the Supreme Court of this State and recovered $2,750 damages for his failure to fulfill the contract. In the complaint in the Supreme Court action the plaintiff alleged that at the time of the execution of the agreement he paid Lowery $500 on account of the purchase price of the premises. Upon the trial of that action, however, the learned judge who presided charged the jury that the plaintiff could not recover this $500 paid on the contract in that suit. This instruction was given at the request of Mr. Frank E. Blackwell, one of the defendants in the present case, who represented Lowery on that trial. In this action the plaintiff seeks to recover the $500, not from Lowery, but from Blackwell Brothers, who received the money in Lowery's behalf. I think the Municipal Court was right in holding that he had not made out a cause of action against these attorneys. They received the money solely as the agents of Lowery. The payment to them was a payment to him, and must have been so intended by the plaintiff; for otherwise he would not have fulfilled the stipulation of the contract which required and declared that payment to be made at the time of the execution of the agreement. Upon the receipt of the money by Blackwell Brothers it became the property of Lowery, and whatever claim, if any, the plaintiff now has to a repayment thereof is against Lowery and not against his attorneys. It follows that the judgment of the Municipal Court should be affirmed. It is proper to add, however, in view of the possibility that the plaintiff may hereafter sue Lowery to recover this amount, that we do not agree with the defendants in regard to the effect which they attribute to the judgment in the Supreme Court action between Middleworth and Lowery. They argue that the $500 was plainly included in the damages awarded against Lowery in that suit. It seems to us that this position is untenable, inasmuch as the jury were expressly told, at the instance of one of the defendants herein, then acting as counsel for Lowery, that this sum of $500 was not recoverable in that action. Goodrich, P.J., Woodward, Hirschberg and Hooker, JJ., concurred.