The opinion of the Court was delivered by
Kennedy, J.
—Edward Lyon in his life-time, had authorized the plaintiff George Grant, to receive some money coming to him from James L. Dunn. By this authority, Grant called upon Dunn, who not being able to pay the money, then gave his note for it, payable to Grant’s order. This note was retained by Grant, for the purpose of collecting the money upon it, until Lyon’s death. After this, Grant indorsed the note and gave it to the defendant Jacob TV. Seitsinger, merely for the purpose of demanding and receiving the amount due on it. Seitsinger brought a suit’upon the note, against Dunn, obtained a judgment against him, and afterwards received the money- At the time Grant gave the note to Seitsinger, or at least before Seitsinger received any money on account of it, he told Seitsinger that the money mentioned in the note, belonged to the estate of Lyon. After Seit-[526] ¡singer had thus received the note of Grant for collection, he got a note of Grant’s for fifty two dollars, from one Thomas Kepple, dated April 12th, 1820, payable to his order on demand; this note was indorsed by Kepple to Seitsinger; Seitsinger pretended some other claim beside this against Grant, and told him, before any of the money had been collected from Dunni, that he intended to keep his claim against him (Grant) out of it; to which Grant replied that he could not do that, for the whole of the money was coming . to Lyon’s estate; that no part of it belonged to hfm. Before this, as Seitsinger alleged, Grant had said that Lyon’s estate was indebted to him, and he intended to keep the money. The amount of money received by Seitsinger from Dunn, exceeded two hundred and thirty dollars, for which a judgment was confessed by Seitsinger, without prejudice to either party, and subject to an agreement, that a feigned issue should be formed, to. determine whether Grant, Lyon’s executors or Seitsinger, or any one or all of them were, entitled to the money; and if more than one of them, whom, and in what proportions. It was again agreed by all the parties concerned, that the foregoing question should be tried-Without formal pleadings. Upon the trial no evidence was offered, to show that Grant had any claim against the estate of Lyon, or any concern or right to the money, other than an order from Ijyon in his life-time, to demand and receive it for Lyon’s own use, so that the contest remained between Lyon’s executors and Seitsinger. In the course of the trial, the counsel for Lyon’s executors offered in evidence the deposition- of James L. Dunn, which had been taken under a rule of court, but without notice to Jacob W. Seitsinger or his attorney. It was offered for the purpose of showing, that George Grunt was the agent of Edward Lyon to collect the money from James L. Dunn, and that it was a debt owing by Dunn to Lyon, and not to Grant; the counsel offering it, also stipulating at the same time, that if admitted in evidence it should not affect Seitsinger, but should only be used as evidence to settle the question between Grant and Lyon’s executors. This was objected to by the counsel for Seitsinger, and the testimony was , over-ruled by the court. To this decision of the court, the counsel for Lyon’s executors excepted, which is the first error assigned.
There was certainly no error in rejecting this deposition, because it went to show that Grant had no claim or right of his own to the money, which struck at the very root of Seitsinger’s claim, who was a party to the issue trying, and had a right to insist that no testimony should be given to the jury, that had a tendency to determine their minds against him, on the question which formed the very pivot upon which his claim to the money turned, without an opportunity of a cross-examination being afforded to him.
[527] Neither do I conceive that there was any error in the admission ofthe note in evidence, which had been drawn by Grant in fa-vour of Kipple, and by him assigned to Seitsinger. Although the law would not permit Seitsinger to retain the amount of this note out of the money, if it belonged to the executors of Lyon, yet that question, whether it was Lyon’s money or not, was a fact to be decided by the 'jury; and as they decided that, they were to find in favour or against Seitsinge?'’s claim. Because, I think, that in case the jury had been convinced that the money belonged to Grant, and not to Lyon’s executors, it would have been their duty to have allowed Seitsinger out of the money, what he paid for the note, and no more: I say no more, because an agent or mere trustee, ought never to be permitted to speculate on and make profit out of the funds or moneys of his principal or cestui que trust, without accounting for it. With this view of the subject in controversy I think the note was admissible evidence.
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The opinion of the Court was delivered by
Kennedy, J.
—Edward Lyon in his life-time, had authorized the plaintiff George Grant, to receive some money coming to him from James L. Dunn. By this authority, Grant called upon Dunn, who not being able to pay the money, then gave his note for it, payable to Grant’s order. This note was retained by Grant, for the purpose of collecting the money upon it, until Lyon’s death. After this, Grant indorsed the note and gave it to the defendant Jacob TV. Seitsinger, merely for the purpose of demanding and receiving the amount due on it. Seitsinger brought a suit’upon the note, against Dunn, obtained a judgment against him, and afterwards received the money- At the time Grant gave the note to Seitsinger, or at least before Seitsinger received any money on account of it, he told Seitsinger that the money mentioned in the note, belonged to the estate of Lyon. After Seit-[526] ¡singer had thus received the note of Grant for collection, he got a note of Grant’s for fifty two dollars, from one Thomas Kepple, dated April 12th, 1820, payable to his order on demand; this note was indorsed by Kepple to Seitsinger; Seitsinger pretended some other claim beside this against Grant, and told him, before any of the money had been collected from Dunni, that he intended to keep his claim against him (Grant) out of it; to which Grant replied that he could not do that, for the whole of the money was coming . to Lyon’s estate; that no part of it belonged to hfm. Before this, as Seitsinger alleged, Grant had said that Lyon’s estate was indebted to him, and he intended to keep the money. The amount of money received by Seitsinger from Dunn, exceeded two hundred and thirty dollars, for which a judgment was confessed by Seitsinger, without prejudice to either party, and subject to an agreement, that a feigned issue should be formed, to. determine whether Grant, Lyon’s executors or Seitsinger, or any one or all of them were, entitled to the money; and if more than one of them, whom, and in what proportions. It was again agreed by all the parties concerned, that the foregoing question should be tried-Without formal pleadings. Upon the trial no evidence was offered, to show that Grant had any claim against the estate of Lyon, or any concern or right to the money, other than an order from Ijyon in his life-time, to demand and receive it for Lyon’s own use, so that the contest remained between Lyon’s executors and Seitsinger. In the course of the trial, the counsel for Lyon’s executors offered in evidence the deposition- of James L. Dunn, which had been taken under a rule of court, but without notice to Jacob W. Seitsinger or his attorney. It was offered for the purpose of showing, that George Grunt was the agent of Edward Lyon to collect the money from James L. Dunn, and that it was a debt owing by Dunn to Lyon, and not to Grant; the counsel offering it, also stipulating at the same time, that if admitted in evidence it should not affect Seitsinger, but should only be used as evidence to settle the question between Grant and Lyon’s executors. This was objected to by the counsel for Seitsinger, and the testimony was , over-ruled by the court. To this decision of the court, the counsel for Lyon’s executors excepted, which is the first error assigned.
There was certainly no error in rejecting this deposition, because it went to show that Grant had no claim or right of his own to the money, which struck at the very root of Seitsinger’s claim, who was a party to the issue trying, and had a right to insist that no testimony should be given to the jury, that had a tendency to determine their minds against him, on the question which formed the very pivot upon which his claim to the money turned, without an opportunity of a cross-examination being afforded to him.
[527] Neither do I conceive that there was any error in the admission ofthe note in evidence, which had been drawn by Grant in fa-vour of Kipple, and by him assigned to Seitsinger. Although the law would not permit Seitsinger to retain the amount of this note out of the money, if it belonged to the executors of Lyon, yet that question, whether it was Lyon’s money or not, was a fact to be decided by the 'jury; and as they decided that, they were to find in favour or against Seitsinge?'’s claim. Because, I think, that in case the jury had been convinced that the money belonged to Grant, and not to Lyon’s executors, it would have been their duty to have allowed Seitsinger out of the money, what he paid for the note, and no more: I say no more, because an agent or mere trustee, ought never to be permitted to speculate on and make profit out of the funds or moneys of his principal or cestui que trust, without accounting for it. With this view of the subject in controversy I think the note was admissible evidence.
The third and last error assigned is, that the court below erred in answering the first, third, fourth and fifth points, submitted by the counsel on behalf of Lyon’s executors. The court in answer to the first, third and fourth points, charged the jury in substance, that if Seitsinger purchased and obtained the note of Kipple against Grant, upon the faith that the money coming from Dunn, would come into his hands, before he knew that the money belonged to Jjyon, or his executors, he was entitled to have or retain the amount of it out of the money collected from Dunn, and that too, whether the money belonged to Grant or to Lyon’s executors. In this opinion of the court, there was error. It must appear to every man of common sense, upon the first blush, that it would be highly unjust, that the moneys of Edward Lyon or his executors, should be appropriated, without their consent at least, to the payment of George Grant’s debts. But it is said by the court below, that if Seitsinger purchased the note from Kipple, upon the faith, that he would be paid out of this money when collected, then Lyon ought, as between him and Seitsinger to bear the loss if any, and Seitsinger should be entitled to retain the amount of the note. It is difficult to conceive of any just ground, upon which Seitsinger, who was merely the agent of Grant, and had no right whatever, to any part of'the money coming from Dunn, but a mere naked authority to demand and receive it for Grant, could have been impressed with an idea or confidence, that he had a right to dispose of it, or to give himself a lien or claim upon it, without the consent of Grant, even supposing it had been Grant’s. Nobody can doubt, but that the authority conferred by Grant upon Seitsinger, revocable; but if Seitsinger to collect this money of Dunn, was could purchase up outstanding debts [528] against Grant, in expectation, or upon the faith, as the court below told the jury, that he would thereby acquire a right to have the money, for the purpose of satisfying such notes, it would be to make his power irrevocable, and to give him a right to receive the money in despite of Grant. If Seitsinger had intended ta> act fairly with Grant, and safely for himself, he, before he purchased this note of fifty two dollars against Grant, would have first spoken to Grant, and made known to him that he was about to do so; and if upon his doing so, Grant had told him to get it if he could, and take the amount of it, out of the money coming to Dunn, as soon as collected, he might then have said with some propriety, that he had taken the note, upon the faith of his getting the amount out of that fund when received, and if the money due ■ from Dunn, had been coming from Grant in his own right, Seit-singer would have been entitled to it. Seitsinger had no authority to, receive this money, that Grant could not have revoked offset aside at any time, either before or after Seitsinger got the note of Kipple, and I will go further, and say, that Lyon’s executors might have interposed, and prevented either Grant or Seitsinger from receiving it, as neither of them ever had any right to it. In support of this position, see Barber v. Prentiss, 6 Mass. Rep. 430. Herrick v. Carman, 10 Johns. Rep. 224. Cornstock v. Hoog et al., 5 Wend. 600.
Judgment reversed and a venire de novo awarded.