Pratt v. Strong.

Ethan R. Pratt sued Demas Strong, in the supreme court, to recover the sum of two thousand dollars and interest thereon from January 1, 1853, collected by the defendant upon a demand against certain parties in California for the account of the plaintiff, which he had neglected and refused to pay over to the plaintiff, although requested to do so. Both parties were sworn upon the trial, and gave contradictory evidence, the defendant claiming that he had an accounting with the plaintiff, in which the claim in suit was settled, and also that he had never, in fact, received the money. Plaintiff gave evidence tending to show that defendant had received the money, and had sought to conceal the fact from him; and also, that the demand belonged to him, and not the defendant. The jury found that the defendant had collected, on account of the plaintiff, nine hundred and twenty dollars, for which amount they rendered a verdict for the plaintiff, with interest.

Philip S. Crooke, for defendant, appellant.

C. M. Briggs, for plaintiff, respondent.

MORGAN, J. [After stating the facts.]-But two exceptions were taken on the trial, one of which is not noticed in the appellant's points, and will not be noticed here. The other exception is to the refusal of the judge to allow the defendant to answer the following question, viz: "Why did you not receive the money?" (meaning the nine hundred and twenty dollars, which it appears Judge ALDRICH had transmitted to the defendant from California, and which was a part of the demand for which this action was brought). It would have been well enough; I think, to have allowed the question to be answered; although it appears from the case that the defendant had already made an explanation, and had given evidence tending to show that the money had never been sent to him, but which evidence was contradicted by other testimony and disbelieved by the jury. It is impossible to say that the question was in any way material to the defense, without its being made more pointed and definite. We do not speculate upon a general exception of this character, to see if something material might not have grown out of the answer. It is not enough

Priest v. Price.

that the appellant's counsel is able to state a case on the argument in which the question might be deemed material. He should do that at the circuit, so that the judge can see its materiality.

The judgment should be affirmed, with ten per cent. damages.

All the judges concurred.

Judgment affirmed, with costs and ten per cent. damages.

PRIEST v. PRICE.

December, 1866.

Where a third person receives money due from a debtor to his creditor, and does not pay it over to the creditor, in consequence of which the creditor sues his debtor and recovers his demand, the debtor may sue such third person to recover back the former payment.

Albert Priest sued Rodman M. Price, in the supreme court, for money received under the following facts:

Ambrose Lanfear was the owner, by assignment from Ward & Price, of the following instrument:

"Exchange for $5,000%.

New York, October 9, 1859. "Thirty days after sight of this first of Exchange (second and third unpaid), pay to the order of Messrs. Ward & Price $5,000, payable in gold-dust at $16 pr. ounce, value received, and charge the same to account

"To Henry Naglee, Esq.,

(Signed)

"San Francisco, California."

"ALBERT PRIEST.

At maturity it was presented to the drawee and payment refused, and was protested, and notice thereof was given to the drawer, the present plaintiff.

Plaintiff subsequently paid over three thousand dollars of the amount.

On or about September 27, 1851, defendant applied to plaintiff's agent at San Francisco, and demanded payment of the

Priest v. Price.

balance, representing that he was the holder of the draft and entitled to it; plaintiff, in ignorance of the fact that it had been transferred to Lanfear, and, relying upon said representation, paid him the balance; and the defendant retained the same in his hands. Subsequently Lanfear sued the plaintiff on the draft and recovered the balance of him.

The referee found these facts, and held that the plaintiff was entitled to recover back what he had paid to the defendant.

Cummins, Alexander & Green, attorneys for defendant, appellant; Cited Story on Bills of Exch. § 48; Chit. on Bills, §§ 132, 138; Cook v. Satterlee, 6 Cow. 108; Farrell v. Hennett, 7 Mo. 595; Hawkins v. Watkins, 5 Pike, 481; Bradley v. Morris, 3 Scam. 182; Harker v. Anderson, 21 Wend. 372; Owen v. Lavine, 14 Ark. (1 Ber.) 389; Milamourer v. Adams, 8 Eng. (13 Ark.) 12.

Henry A. Cram and E. R. Robinson, for plaintiff, respondent; Cited McNeilly v. Richardson, 4 Cow. 607; Hoyt v. Wilkinson, 10 Pick. 31; Longfellow v. Andrews, 45 Me. 75.

BY THE COURT.-MORGAN, J.-Upon the undisputed facts of this case, the defendant, not being the owner of the demand, received of the plaintiff the balance appearing to be due upon the instrument set forth in the complaint, without any right unless he was the agent of the owner, and if he was such agent he received it without paying it over to the owner, as it was his duty to do, in consequence of which Lanfear, the owner, brought an action against the plaintiff and recovered the same balance of him. There is no equity in the defense, and no principle of law upon which the defendant can be allowed to retain the money.

Whether the instrument was negotiable or not, it was the subject of a transfer by sale to Lanfear, and entitled him to the money due upon it. The payees had no more right to collect it for themselves after the transfer, than they would have had if it had been a regular bill of exchange. The question raised by the exception is wholly immaterial.

Prior v. Williams.

[Remarks disposing of immaterial exceptions are omitted.]

All the judges concurred.

Judgment affirmed, with costs, and ten per cent. damages.

PRIOR v. WILLIAMS.

September, 1866.

An instrument may be reformed in equity, although the contract contained in it would be invalid if not in writing.

An instrument executed by a surety may be reformed as against him, where it is the subject of fraud or mutual mistake, in the same manner as if it were executed by the principal debtor.

Horace Prior and James Prior, as executors of Henry Prior, deceased, brought an action, in the New York superior court, against Gibson T. Williams, Harriet H. Chamberlin and William B. Chamberlin, in which they asked, as subsequent mortgagees, to be allowed to redeem certain premises in the city of Buffalo, owned by Harriet H. Chamberlin, from the lien of a mortgage held by Williams. They also asked that the mortgage under which they claimed might be reformed.

The facts of the case were, that William B. Chamberlin, son of Harriet Chamberlin, being a member of the firm of Prior, Holcomb & Co., doing business in New York, had induced his mother to indorse certain notes in blank, upon the agreement that they were to be signed by the firm and used in their business. One of these notes, for fifteen hundred dollars, at three months, he (William H. Chamberlin) signed with his own individual name, and negotiated to Henry Prior, brother of the Horace Prior of his firm. On the note falling due, Henry Prior agreed to extend the time for payment to one year, provided he were secured by a mortgage cn Mrs. Chamberlin's property in Buffalo. A mortgage was accordingly made by Mrs. Chamberlin to meet the wishes of Henry Prior. By a mistake, however, the mortgage was made to Horace Prior, and the note, to secure the payment of which the mortgage was made, was described as being payable "one year after the

Prior v. Williams.

date thereof," instead of three months after date. The false description of the note was not noticed, and the mortgage was assigned by Horace Prior to Henry Prior, and held by him up to the time of his death, and after that by his executors, until the property on which it was given being about to be sold under the foreclosure of a prior mortgage, they brought this action to be allowed to redeem, and to have their mortgage reformed by having the words "one year after date thereof," in the description of the note, stricken out, and the words "three months after date thereof " inserted.

The referee reported in favor of plaintiffs, and the judgment thereon was affirmed by the court at general term. Defendants appealed to this court.

J. D. H. Chamberlin, for defendants, appellants.-That a contract by a surety can not be reformed except for fraud. Ontario Bank v. Mumford, 2 Barb. Ch. 613; Walsh v. Bailie, 10 Johns. 180; Dobbin v. Bradley, 17 Wend. 422; Wing v. Terry, 5 Hill, 160; Birckhead v. Brown, Id. 634; Philips v. Garvin, 8 Paige, 322. That it would be contrary to the statute of frauds. Fullam v. Adams, 4 Am. Law Reg. N. S. 460.

William Dorsheimer, for plaintiffs, respondents.-That the misdescription of the note in the mortgage was an immaterial variance, cited Goodhue v. Berrien, 2 Sandf. 630; Jackson v. Bowen, 7 Cow. 13. That the instrument should be reformed. Leavitt v. Palmer, 3 N. Y. 19; Quick v. Stuyvesant, 8 Paige, 84.

PECKHAM, J.-The only point made by the appellants requiring examination is, whether this mistake in this mortgage can be corrected by the court, as the mortgagor was a mere surety.

The appellant does not urge that the mortgage is already sufficient, as perhaps she might. See Jackson v. Bowen, 7 Cow. 13, and cases cited.

Counsel referred to the remarks of the chancellor in Ontario Bank v. Mumford, 2 Barb. 596, at 613. It is true the chanIII.-40