Rathbun v. Ingals

7 Wend. 320

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By the Court,

Sutherland, J.

The plaintiff was properly nonsuited, on the ground that there was no evidence of a demand of the money having been made upon him, or directions' to remit having been given before the commencement of the suit. It was decided in Taylor v. Bates, 5 Cowen, 376, that an attorney was not liable to an action for money collected by him as attorney for another, until demand or directions to remit. The evidence of a waiver of a demand was not sufficient, under the circumstances of the case, to go to the jury; or at all events, to justify them in finding for the plaintiff.

The money appears to have been collected by the defendant in the year 1820, about which time the plaintiff abscond, ed from Easton where he resided, and has not been seen there publicly since. To whom was the defendant to pay the money T It could not be paid to the plaintiff, and he never appointed or constituted an agent for the purpose.

The declarations of the defendant, made to third persons, not the agents of the plaintiff nor in any manner connected with him in relation to this business, that he intended to retain the money to indemnify him for a fraud which had been committed upon him by the plaintiff in the sale of a horse, are not to be considered such a refusal to pay as would dispense with the necessity of a demand. If the persons to whom the declarations were made had been the agents of the plaintiff, authorized to ascertain from the defendant whether he intended to pay the money or not, the case would have been different ; as the facts are, the defendant is not to be affected by those declarations; there is no evidence that they ever came ■ to the knowledge of the plaintiff.

Motion for new trial denied.