Brown v. Bankers & Brokers' Telegraph Co.

NelsoN, J., delivered the opinion of the Court. This is an action of indebitatus assumpsit for work and labor done and materials furnished. The material facts are, that the plaintiff was employed by H. H. Wainwright, the superintendent and engineer of the defendant, having authority to make such contract, to supply materials, and do the carpenter’s work in and about the offices of the defendant. Whilst the work was in progress, the agent of the plaintiff called on Wainwright for an advance of money on account; Wainwright handed said agent his check on the Banking house of Thomas & Co., in the city of Baltimore, for $200, and took from said agent his receipt; that check was promptly paid upon presentation.

Afterwards, and when the work was completed, or nearly so, the agent of the plaintiff again called on Wainwright for money on account;, this call was pn the 3d day of July, 1865, Wainwright gave him his own check upon the same banking house for $700, post ⁴³ dated the 8th of July, 1865, for which, the agent of plaintiff gave to him the following receipt: Office General Superintendent of the BANKERS AND BROKERS’ TELEGRAPH Co. . Baltimore, July 3d, 1865. Received from IT. H. Wainwright, Sup’t, seven hundred dollars an account of carpenter’s work, painting, &c., at office No. 132 Baltimore street.

Received, Elias Brown, per G. C. B. At the time the cheek was handed to the plaintiff’s agent, Wainwright informed him there was not at that time money in the bank to pay it, but that the treasurer of the defendant would be in Baltimore in a few days, and would furnish him, Wainwright, with funds to meet it. The agent testifies, that he accepted the check and gave his receipt for it on the faith of this statement. It is further in proofj by the witness Henry Janes, that in July and August, 1865, he was the treasurer of the defendant, and the receipt given by the plaintiff to Wainwright for $700 came in to him as a voucher in the defendant’s account, on the 20th day of July, 1865; that the course of dealing with Wainwright by defendant was, the treasurer of the defendant charged Wainwright with the money paid him, and credited him with the vouchers for its disbursement as they were brought in by Wainwright. On the 14th day of July, 1865, Wainwright drew on the treasurer of the defendant in favor of Thomas & Co., Bankers, for $3,000, but he being at that time largely in the defendant’s debt, it withheld payment of the draft until Wainwright, on the 20th of July, 1865, brought in a number of vouchers, including the receipt of the plaintiff for the $700, when the draft to Thomas & Co. was paid, but said draft would not have been paid but for Wainwright’s bringing in a satisfactory amount of vouchers. ⁴⁴ When Wainwright left the service of the defendant he was largely in its debt, and so continued until the l'2th day of October, 1865, when his account with the defendant was finally closed on the defendant’s books, by crediting him with vouchers brought in on that day; no money was received from him.

On these facts the defendant contends the plaintiff is not entitled to recover. The principle of law applicable to this class of cases, is very clearly laid down by Judge Story, in his Commentaries on the Law of Agency. In section 433, he says: “ if a creditor of the principal settles with the agent, and takes a note or other security from the latter, for the amount due by the principal, although, as between the parties, it is intended only as a conditional payment; yet, if the creditor gives a receipt, as if the money were received, or the security were an absolute payment, so that the agent is thereby enabled to settle, and does settle with the principal, as if the debt had been actually discharged, and the principal would otherwise be prejudiced, the 'debt will be deemed, as to the latter, ‘ absolutely discharged.” So the law has been adjudged to be, by Lord ElleNBOROUGH, in Wyatt vs. The Marquis of Hertford, in 3 East’s Reports, 147, where his Lordship says: “ if it had appeared that the defendant had in the interval inspected the steward’s accounts, and had in any manner dealt differently with him on the supposition that this demand had been satisfied as the receipt imported, no doubt the defendant' would have been discharged.” The following authorities fully sustain the principle. Muldon vs. Whitlock, 1 Cowen, 290; Heald and others vs. Kenworthy, 10 Exchequer, 739; Macfarlane vs. Giannacopulo, 3 Hurl. &