H. J. Mohlman Co. v. Reikers

Appellate Terms of the Supreme Court of New York

H. J. Mohlman Co. v. Reikers

36 Misc. 770, 74 N.Y.S. 848

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1901

StatusPublished

This text of 36 Misc. 770 (H. J. Mohlman Co. v. Reikers) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

H. J. Mohlman Co. v. Reikers, 36 Misc. 770, 74 N.Y.S. 848 (N.Y. Ct. App. 1901).

Pincite

Opinion

McAdam, J.

The plaintiff, a corporation, sues to recover $460.83, for'goods sold and delivered. The defendant pleaded that he had paid, on account of the demand, $350 by the transfer of a certain piece of real estate to John Y. Fitzsimmons, the representative of the plaintiff. The justice found that this defense had been established and gave the plaintiff judgment for the balance due, $110.83. The plaintiff, being dissatisfied with the amount of the recovery on account of its inadequacy, has appealed.

[771]*771It appears that Fitzsimmons was an assistant cashier of the ' plaintiff; that the defendant got into some little financial trouble and proposed to convey his property to his creditors; he offered the deed in suit to Fitzsimmons on the plaintiff’s claim. The defendant said, “ In whose name shall I put the property? ” and Fitzsimmons replied, “Put it in mine if you like.” The defendant thereupon executed a deed to Fitzsimmons of the property. The corporation never authorized the act and promptly disapproved of and repudiated it. Fitzsimmons thereupon tendered back a reconveyance of the property to the defendant so as to restore him to his former position. Surely, the transaction stated between the plaintiff’s agent and the defendant discharged no part of the plaintiff’s claim. It was the agent’s duty to keep the property of the principal separate from his own; he could not act in his own name or for his own account, nor could he discharge obligations to his principal by taking conveyances or transfers in his own name. In order to bind the principal and to make it his contract, the instrument must purport on its face to be the contract of the principal. In the present instance, the deed was not made to the plaintiff, but to its agent in his individual right. It in no manner purported to or did convey any right to the plaintiff, nor did it confer upon it any legal title whatever.

For these reasons the judgment must be reversed and a new tidal ordered, with costs to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to abide event.

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McAdam, J.

The plaintiff, a corporation, sues to recover $460.83, for'goods sold and delivered. The defendant pleaded that he had paid, on account of the demand, $350 by the transfer of a certain piece of real estate to John Y. Fitzsimmons, the representative of the plaintiff. The justice found that this defense had been established and gave the plaintiff judgment for the balance due, $110.83. The plaintiff, being dissatisfied with the amount of the recovery on account of its inadequacy, has appealed.

[771]*771It appears that Fitzsimmons was an assistant cashier of the ' plaintiff; that the defendant got into some little financial trouble and proposed to convey his property to his creditors; he offered the deed in suit to Fitzsimmons on the plaintiff’s claim. The defendant said, “ In whose name shall I put the property? ” and Fitzsimmons replied, “Put it in mine if you like.” The defendant thereupon executed a deed to Fitzsimmons of the property. The corporation never authorized the act and promptly disapproved of and repudiated it. Fitzsimmons thereupon tendered back a reconveyance of the property to the defendant so as to restore him to his former position. Surely, the transaction stated between the plaintiff’s agent and the defendant discharged no part of the plaintiff’s claim. It was the agent’s duty to keep the property of the principal separate from his own; he could not act in his own name or for his own account, nor could he discharge obligations to his principal by taking conveyances or transfers in his own name. In order to bind the principal and to make it his contract, the instrument must purport on its face to be the contract of the principal. In the present instance, the deed was not made to the plaintiff, but to its agent in his individual right. It in no manner purported to or did convey any right to the plaintiff, nor did it confer upon it any legal title whatever.

For these reasons the judgment must be reversed and a new tidal ordered, with costs to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to abide event.

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Bluebook (online)

36 Misc. 770, 74 N.Y.S. 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-j-mohlman-co-v-reikers-nyappterm-1901.