Thacher v. Pray

113 Mass. 291

Opinion

Endicott, J.

The instructions upon which this case was given to the jury failed to notice an important portion of the evidence. If the only dealings between the plaintiff and Gray related to this horse, and the money paid for the horse by the defendant to Gray, who had no authority to sell, had been sent to the plaintiff, the taking and keeping it might be a ratification of the sale by Gray; or if the plaintiff had wished to rescind it, he should return the money so received. But the evidence in the case required other and further instructions. It appeared that the plaintiff had sent potatoes to Gray for sale, and there was evidence tending to show that the check for $100, taken by Gray on account of the wrongful sale of the horse, was paid over to the plaintiff, received by him, and credited on account of the potatoes, and the plaintiff did not know the horse had been sold, for a long time afterward. These facts justify the plaintiff’s prayer for instructions, and we think they should have been given. It does not affect the rights of the parties that the same check which defendant gave Gray was given to the plaintiff, if it was applied to the settlement of an existing account between them, without any notice that it was a part of the proceeds of the unauthorized sale of the horse. Being indorsed by Gray it was in the plaintiff’s hands payable to bearer, transferable by delivery, and subject to the same rules as bank bills, coupons, or other instruments payable in money to bearer. Spooner v. Holmes, 102 Mass. 503. It is as if Gray had cashed the check and sent the identical or other bills to the plaintiff. It was held in Lime Rock Bank v. Plimpton, 17 Pick. 159, where an agent had lent the money of his principal to his private creditor, who appropriated it to the payment of the debt, that the principal could not recover it, the creditor not knowing at the time of the loan that the money belonged to the principal. The creditor had the right to secure his private debt, and being money having no ear mark, it did not stand on the same ground as chattels. A party is not bound to inquire into the authority of a person from whom he receives money in payment of a debt, for a different doctrine would be productive of great mischief. In that case as in this, there was no privity between the parties, and the equities were much stronger than here.

Exceptions sustained.