Opinion
Argued December 4, 1871
Decided December 12, 1871
Thomas H. Hubbard, for appellant. D.T. Walden, for respondent.
The money was payable out of a particular fund. It was not, therefore, a draft, within the law-merchant; and the mere acceptance did not, of itself, create a presumption of a sufficient consideration. The fair import of the words, "for value received," contained therein, is, that such value had been received by the drawer, and not by the acceptor. The order drawn by Melville upon the defendant requested him to pay the plaintiff, or order, $500, besides the amount stipulated to pay Mr. R. (plaintiff meaning), out of the proceeds of the claim against the Peabody estate, then in his hands, to collect when the same should be collected by him. The acceptance by the defendant of this order was an admission by him, that he had in his hands for collection a claim against the Peabody estate, a portion of the proceeds of which, if collected, belonged to Melville; and the acceptance by him of the order was an undertaking by him to pay such portion to the plaintiff, not exceeding $500. The answer of the defendant shows what this claim against the Peabody estate, referred to in the order, was, and states the amount to be, by the stipulation, paid to the plaintiff, which was, one-half the amount collected. The answer admitted the collection upon the claim, by the defendant, of $1,072, and avers that, after deducting twenty-two dollars for disbursements, he paid the plaintiff $525 under his agreement. The acceptance of the order was an admission by the defendant, that the proceeds of the collection belonged to Melville, over and above what, by the agreement, he was to pay the plaintiff, and his charges for collection. It appearing, by the averments of the answer, that such proceeds amounted to more than $500, the amount of the order, the liability of the defendant to the plaintiff for the latter amount upon the order was established. That this claim of Melville, in the hands of the defendant for collection, was a sufficient consideration for his acceptance of Melville's order to pay the proceeds to the plaintiff, when collected, is too clear for discussion. The counsel for the respondent concedes this, and the majority of the General Term, by whom the judgment upon the report of the referee was reversed, do not question it; but the latter overlooked the fact that the acceptance of the order by the defendant was an admission by him of Melville's interest in the claim. It follows, that the exception of the defendant to the refusal of the referee to dismiss the complaint, upon the ground that there was no consideration for the acceptance, was not well taken. The defendant then testified that Melville had no interest whatever in the claim; that the only agreement made by him in relation to the claim was with the plaintiff; and the assignment of the judgment by the plaintiff to the defendant, which laid at the foundation of the claim against the Peabody estate, was introduced in evidence, from which it appeared that the defendant was to pay the plaintiff one-half of the amount collected, after deducting his costs and charges for the same, and was not to receive anything from the plaintiff for such costs, etc., in case nothing was collected. The defendant further testified that he was to retain the residue for his own use. He further testified that he was induced to accept the order, by the representation of Melville to him, that the sum he would collect would amount to $4,000, in the belief of which he would pay $500 for Melville's benefit; that all he collected was the $1,072. Melville denied all this, and testified that he procured the plaintiff to make the assignment to the defendant, who previously had agreed with him to accept the same, and collect the claim, and account with him for the proceeds not payable to the plaintiff. This accords precisely with the admission of the defendant, by his acceptance of the order. In this connection, it will be well to consider the following statement in the defendant's sworn answer: "And defendant says that the plaintiff well knew the circumstances under which said draft was accepted, and that, in the whole matter, he acted in concert with the said Melville to obtain from the said defendant the whole amount of said money so collected on said judgment, for the benefit of the said Melville and himself, and to deprive this defendant from applying the same so received toward the payment of the large indebtedness of the said Melville to said defendant." This is wholly inconsistent with his testimony on the trial, to the effect that Melville had no interest in the claim. The report of the referee contains no express finding by him upon this evidence; but no one can fail to perceive that the decided preponderance of the evidence was that Melville did have the interest in the claim as claimed by the plaintiff, and that a finding that he did not have such interest would have been against the weight of the evidence. It requires no citation of authorities to show that it was the duty of the appellate court, under these circumstances, to assume, in support of the judgment of the referee, that he found that Melville had the interest in the claim as insisted by the plaintiff. The order of the General Term must be reversed, and the judgment upon the report of the referee affirmed, with costs to the appellant.
All concur.
Judgment accordingly.