Olivieri v. Tomei

1 P.R. Fed. 125

Opinion

Holt, Judge,

delivered tbe following opinion:

By consent a jury bas been waived herein, and tbe law and facts submitted to tbe court It is shown that tbe defendant Santos Tomei, was, on October 7th, 1890, by a power of attorney from Antonio, Francisco, and Rosana Olivieri, constituted their agent to collect tbe balance owing on a certain mortgage credit of 5,000 pesos from Domingto Dominico. Tbe debt was payable 1,000 pesos May 31st, 1889, and a like sum on eacli May 31st following until all should be paid, or in five payments. The first one was paid to Antonio Olivieri. The defendant presents the general issue, and it has been earnestly urged in argument that it is not shown he collected any interest, and that he should not be made liable for any.

The defendant acknowledged in writing, on August 21st, 1899, the receipt of the last four payments. This action is for the one-third portion thereof of the plaintiff, Francisco Olivieri, and the writing expressly says that there was paid to the defendant the interest due for the delay in the payment of the second instalment; and it is fairly to be presumed he collected interest upon the payments from the time they were due until such collection. It was his duty to do so. It is not shown that the plaintiff had made a demand of payment of him before the bringing of this suit; and it is therefore said he is not liable for interest after he made the collection. The general rule is, that the principal must make a demand of his agent before he can recover money received by the agent in the course of his agency. It has been held by high authority, however, that this rule does not apply to a mere collecting agent, who receives money for his principal; but that it is his duty to pay it over within a reasonable time; and if not so paid, the principal may sue him therefor without any previous demand. Lillie v. Hoyt, 5 Hill, 395, 40 Am. Dec. 360.

In any event there are limitations upon the general rule, one of which is, that if the agent fails to render an account, or to notify his principal of the collection of money within a reasonable time, a demand for payment before suit is not necessary. 1 Am. & Eng. Enc. Law, p. 1092.

In this instance the defendant has for a long time and improperly withheld the money from his principal. There has been 'an unreasonable delay in its payment. He was a mere collecting agent. It was bis duty to account and pay over tbe money to bis principal. So far as is shown be returned no account whatever to him. He collected it for tbe use of bis principal, and be not only bad a right to receive it, but it was bis agent’s duty to pay it over within a reasonable time. This be failed to do, and be is chargeable with interest from tbe time tbe payments became due. They were due, respectively, May 31st, 1890, May 31st, 1891, May 31st, 1S92, and May 31st, 1893. A reasonable average of time as to them would be December 1st, 1891; and until December 1st, 1903, would be twelve years, for which the defendant is liable for interest at 6 per cent per annum. The plaintiffs one third of tbe 4,000 pesos is 1,333 1-3 pesos, and the interest thereon amounts vto 960 pesos; making a total of 2,293 1-3'pesos, which, counted in the present currency at 60 cents to the peso, makes $1,376.-And it is adjudged that the plaintiff, Francisco Olivieri, recover of the defendant, Santos Tomei, this sum with 6 per cent interest thereon from this date until paid, and his costs herein expended.