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the transaction, the creditor may after payment, and a defense to an action by wards ratify it and then becomes a the assured on the policy. Slocomb v. valid payment. Hoinire v. Rodgers, Merchants' Mut. Ins. Co., 24 La. Ann. 74 Iowa 395; Strayhorn v. Webb, 2 291. Jones (N. Car.) 199; s. C., 64 Am. A compulsory payment of a debt to a Dec. 580.

receiver under the sequestration acts of A ratification of a wrongful pay the Confederate government is no dement must be an entirety. Williams fense to a suit by the creditor. Shortv. Jones, 77 Ala. 294.

ridge v. Macon, Chase Dec. (U. S.) The authority of the person to whom 136. payment is made to receive it may The fact that the note is made payabe inferred from circumstances or from ble at the recorder's office, does not the course of dealing of the parties. confer authority on the recorder to reSax v. Drake, 69 Iowa 760.

ceive payment. Aguilar v. Bourgeois, If a mortgagor makes payment to 12 La. Ann. 122. the person to whom the administra And the same rule applies where the tor of the mortgagee says the mort note is made payable at the office of a gage and notes belong, he is protected mercantile firm. Rowland v. Levy, 14 thereby. Reynolds v. Smith, 57 Mich. La. Ann. 219. 194.

A justice of the peace in whose hands Payment to the son of the agent notes have been placed for suit may reauthorized to receive payment is not ceive payment; and a payment to him binding on the creditor, if he does not will bar a subsequent suit on the notes. actually receive the money. Lewis v. Johnson v. Hall, 5 Ga. 384. Ingersoll, 3 Abb. App. Dec. (N. Y.) Under the code of Ohio, where an 55.

execution has been issued by a justice The collection of other securities or of the peace against a judgment debtor, the interest, or a part of the principal any person indebted to him may pay to debt, are insufficient to raise an im- the constable his debt, or so much plied authority to receive payment. thereof as is necessary to satisfy the Smith v. Kidd, 68 N. Y. 130; s. c., 23 judgment, and the constable's reciept Am. Rep. 157; Cox v. Cutter, 28 N. is a sufficient discharge of the amount J. Eq. 13: Garrels v. Morton, 26 Ill. so paid. Hallanon v. Cruw, 15 Ohio App. 433.

St. 176. Where the creditor has authorized And see, under Wisconsin statute, the debtor to send to a third person Dunbar v. Harnesberger, 12 Wis. 373. the money due, the debtor must notify Payment of a debt due the school the creditor that he has so sent it. And fund to a school commissioner who it is not sufficient that he writes a had been removed from office, and letter to the creditor, if the creditor whose removal was known to the never in fact receives it, and therefore debtor, is not an extinguishment of the loses the benefit of the payment. Hol- debt. Jameson v. Conway, 10 IIN 227. land v. Tyns, 56 Ga. 56.

Where the plaintiff is only a nominal A sold to B certain chattels upon one, and not the real party in interest, which C had a lien, and B, in order to a payment of the judgment to him is get possession of the chattels, was com- not a satisfaction thereof. Triplett v. pelled to pay C's claim. Held, that Scott, 12 III. 137. this constituted a payment to A of the A savings bank required that every purchase-money pro tanto. Partridge depositor should sign the by-laws and v. Dartmouth College, 5 N. H. 286. agree to conform to them. Among the

A payment to a person simulating by.laws was one providing that the the creditor, will not bar a recovery on bank would not be responsible for loss the debt by the real creditor. People sustained by payments made on prev. Smith, 43 Ill. 219; 8. C., 92 Am. Dec. sentation of the pass-book, when the de 109. .

positor had not given notice of its havWhere an insurance company in one ing been lost or stolen, and that it of the Confederate States, during the would not be answerable for the consependency of the war, paid the amount quences of any mistake as to identity of due the insured for a loss to a quarterthe person presenting it. A depositor master of the government, such pay received a pass-book containing the by: ment being made by virtue of a mili. laws, but she was unable to read and tary order of the commander of the signed them by her mark. She having Federal forces, this constituted a valid died, the book was presented to the

2. After Assignment.-A payment of any debt, not evidenced by paper negotiable by the law-merchant, made by the debtor to the original creditor, after an assignment thereof by the latter, when made in good faith without notice, actual or constructive, of the assignment, is valid. 1

3. To the Holder of a Bill or Note.—The holder of a note who presents the same for payment is presumed to be the legal owner thereof.2

bank by one who fraudulently per E ven if paid on garnishee process. sonated her, and the deposit was paid, Gillan v. Huber, 4 Greene (Iowa) 155. the bank having received no notice of 2. Stoddard v. Burton, 41 Iowa 582; the loss of the book. Held, that her Holly v.Holly, 94 N. Car. 670. executor could not recover from the If the payee pays a holder whom he bank the amount of the deposit. Don- knows has no right to receive payment, lan v. Provident Institution, 127 Mass. this will not extinguish the note. Net183; s. C., 34 Am. Rep. 358.

terville v. Stevens, 2 How. (Miss.) 642. And see further on the general sub The maker of a note has a right to ject: United States v. Keehler, 9 Wall. pay it to the holder where it is properly (U. S.) 83; Cheney v. Libby, 134 U.S. indorsed by the payee, even though 68; Wilcox v. Carr, 37 Fed. Rep. 130; paid before maturity; the element of Berrel v. Davis, 44 Mo. 407; Crowell v. good faith does not enter into the Simpson, 7 Jones L. (N. Car.) 285; De case. Loomis v. Downs, 26 Ill. App. St. Romes v. Levee Steam Cotton 257. Press, 20 La. Ann. 381; Smith v. Atlas The holder of a note payable to himCordage Co., 41 La. Ann. 1; Rush v. self or bearer has the legal title thereto, Fister, 23 Ill. App. 348; Loomis v. though it was taken by way of division Downs, 26 Ill. App. 257; Frey v. in payment of a note given to him and Thompson, 20 Nev. 253; Baughan v. another person for property which they Brown, 122 Ind. 115; Walker v. New jointly owned; and the maker cannot ton, 53 Wis. 336; Cavanaugh v. Bueh- discharge the debt by paying the other ler, 120 Pa. St. 441; Seiberling v. person and taking his receipt against Demaree, 27 Neb. 854; Crane v. Grue- the note in the holder's hand. Enochs newald, 120 N. Y. 274; Tummonds v. v. Therrell, 61 Miss. 178. Moody (Supreme Ct.) 3 N. Y. Supp. Payment of a bill of exchange or a 714; Dean v. International Tile Co., 47 negotiable promissory note by the acHun (N. Y.) 319.

ceptor or maker to one who is bona 1. Van Keuren v. Corkins, 66 N. Y. fidc in possession of the instrument, 79; Preston v. Grayson Co., 30 Gratt. though without indorsement, is a good (Va.) 496.

payment. Edwards v. Parks, 1 Winst. But if the debt is evidenced by a non- Eq. No. 2 (N. Car.) 49. negotiable instrument, as a bond, and A payment to the payee or indorsee the instrument is not produced when of a draft or note who had not posses. the payment is made, such payment is sion of it, but who gave a receipt in full made at the risk of the debtor; and if and agreed to get the paper and surit turns out that the instrument has render it, is not a payment, and will not been assigned and is held at the time protect the maker or drawer against a of payment by another party, the pay- suit by a bona fide holder thereof. Wilment is not a valid one. Clarke v. cox v. Aultman, 64 Ga. 544; s. C., 37 Iglestrom, 51 How. Pr. (N. Y.) 407; Am. Rep. 92; Howard v. Rice, 54 Ga. Mobley v. Ryan, 14 Ill. 51; 56 Am. 52; Best v. Crall, 23 Kan. 482; s. C., 33 Dec. 488; Capps v. Gorham, 14 Ill. 198. Am. Rep. 185; Wheeler v. Guild, 20

If the note is non-negotiable, but the Pick. (Mass.) 545; s. c., 32 Am. Dec. maker has notice that it has been 231; Brayley v. Ellis, 71 Iowa 155; assigned, a payment to the original Osborn v. Baird, 45 Wis. 189; 8. c., 30 payee is at the maker's risk; a fortiori, Am. Rep. 710; Gosling v. Griffin, 85 if suit has been brought on it by one Tenn. 737. Compare Allein o, Agri. claiming to be assignee. Hickok v. cultural Bank, 3 Smed. & M. (Miss.) Labussier, i Morr. (Iowa) 115; Holden 48. v. Kirby, 21 Wis. 149.

But if the paper is non-negotiable a 4. Lost or Stolen Bills or Notes.—Where a note payable to bearer, or indorsed in blank, is lost or stolen, a payment by the maker to the holder is good, and even gross negligence on the part of the maker, if unattended with mala fides, will not invalidate the payment."

5. To an Agent.—Where a payment is made to an agent of the creditor, there must be some evidence of his authority to receive payment. The delivery of a note to the agent of the holder for

different rule prevails. Johnston v. maker does not constitute a payment Allen, 22 Fla, 224; Heath v. Powers, 9 of the note, unless the maker assents Mo. 774.

to such application of the money. Mc311; Johnston v. Lewis, I A. K. Marsh. A payment to a duly authorized (Ky.) 401; Gibson v. Pew, 3 J.J. Marsh. agent of the holder is good, though the (Ky.) 2:2; Bartholomew v. Hendrix, 5 agent has not possession of the note at Blackf. (Ind.) 572.

the time. Dunn v. Hornbeck, 7. Hun A payment to a mere custodian of a (N. Y.) 629; s. C., affirmed, 72 N. Y. note, when the debtor knows that 80. See Jones on Mortg., 9 964.. the money represented by the note A payment to the party's attorney is belongs to another, will not discharge in general sufficient. ^ Jackson v. Rome, the debt. Lochenmeyer v. Fogarty, 78 Ga. 343; Yates v. Freckleton, 2 112 Ill. 572.

Dougl. 623; Hudson v. Johnson, I But a payment to the real owner of a Wash. (Va.) 10. But not to the clerk of note is good, though the note is at the the attorney. Yates v. Freckleton, 2 time held by another, if the payee had Dougl. 623; Perry v. Turner, 1 Dowe no notice of that fact. Richardson v. Pr. Cas. 300; 2 C. & J. 89; 2 Tyr. Farnsworth, 1 Stew. (Ala.) 55.

128. And payment in good faith to the Payment of a judgment to the attorholder of a note indorsed in blank is ney by whom it was obtained is good, good. Davis v. Lusitanian Portuguese though made more than a year after Ben. Association, 20 La. Ann. 24. the judgment was received. Powell v.

1. Story on Prom. Notes (7th ed.), S Litte, 1 W. Bl. 8; Branch v. Burnley, 382; Edwards on Bills (3rd ed.), 88 434– i Call (Va.) 147; Langdon v. Potter, 438; Goodınan v. Harvey, 4 Ad. & 13 Mass. 319; Lewis v. Gamaje, i Pick. El. 870; Cther v. Rich, 1o Ad. & Ell. (Mass.) 347; Jackson v. Bartlett, 8 748; Hall v. Wilson, 16 Barb. (N. Y.) Johns. (N. Y.) 361 ; Kellog v, Gilbert, 548; Magee 7. Badger, 30 Barb. (N. Y.! 10 Johns. (N. Y.) 220 ; s. c.,6 Am. Dec. 247; Ellsworth v. Fogg, 35 Vt. 355. 335.

Compare 2 Pars. Bills and Notes, The facts that an attorney was em212–215; Byles on Bills 271; Crooks v. ployed to draw up a bond and mortJadis, 5 B. & Ad. 909; Gill v. Cubitt, 3 gage, and that the money was advanced B. & C. 456.

thereon by his client through such atIn a New York case it is held that torney, and that the attorney collected the maker is protected in paying a lost the interest, will not raise the infernote even to a stranger who produces ence that he is authorized to collect no evidence of his title other than the principal, where the securities are possession after maturity. Coth- not in his custody. Smith v. Kidd, 68 ran v. Collins, 29 How. Pr. (N. Y.) 113. N. Y. 130; s. C., 23 Am. Rep. 157. The

2. 2 Greenl. Évid. (13th ed.) § 578; same rule applied to brokers. Stiger Abbott's Trial Evid. 276 (5); 800 (4). v. Bent, 19 Ill. 328.

The authority may be presumed While the authority of an agent to from the authority to sell. Henry v. receive payment may be inferred from Marvin, 4 E. D. Smith (N. Y.) 71. his having made the loan and retained

A payment by the maker to an the securities, this inference fails when agent of the payee, before a transfer the notes are withdrawn from his cusby the payee, may be a good pay- tody. Garrels v. Morton, 26 Ill. App. ment. Renard v. Turner, 42 Ala. 117. 433. To same effect, Lane V. Du

The fact that the holder of the note chac, 75 Wis. 646; Roberts ». Matthews, receives money as the agent of the 1 Vern. 150; Westenholm v. Davies,

Freem. Ch. R. 298; Curtis v. Drought, good. Kaye v. Brett, 5 Exch. 269; 1 Molloy, 487.

Jackson v. Jacob, 5 Scott 79. A mortgagor at the time of making Plaintiff placed goods in the warepayment to the agent of the mortgagee house of E. & Co. for sale, and two inquired of him for the papers, where- parcels were sold the defendant, who upon search was made for them, but resided at a distance. After defendant they were not found. The mortgagor had paid plaintiff for one parcel, he rethen suggested that they might be at ceived a letter from one T, a clerk of the recorder's office, to which the E& Co., inclosing an invoice of the agent replied that they probably were. other parcel, and requesting payment, The mortgagee was insolvent and had stating that E & Co. were authorized assigned the mortgage. Held, that to receive the money for the plaintiff. there was no presumption that the The letter purported to be signed by mortgagor knew of the assignment. E & Co. per per. of the plaintiff. DeFoster v. Beals, 21 N. Y. 247.

fendant remitted the amount in acThe burden of proof is on the debtor cordance with the request, but T interto show that the securities were in the cepted the letter at the office of E & custody of the agent at the time of Co. and appropriated the monev. T payment. Williams v. Walker, 2 had authority from the plaintiff to reSandf. Ch. (N. Y.) 325; Smith ?'. Kidd, ceive payments over the counter only. 68 N. Y. 130; s. C., 23 Am. Rep. 157; Held, that not to constitute payment Garrels v. Morton, 26 Ill. App. 433. for the parcel. Kage v. Brett, 5 Exch.

A receipt given in the name of a 296; 19 L. J. Exch. 346. firm, but in the form used by agents, Payment to a person found in a merputs the person making the payment chant's counting house, ostensibly inon inquiry as to the authority of the trusted with the conduct of the busiparty to whom payment is made. ness there, is a good payment to the Chase v. Buhl Iron Works, 55 Mich. merchant, though it turn out that the 139.

* person was never employed by the Payment to the clerk of a merchant merchant. Barrett v, Deere, M. & M. is not valid unless it is within the 200. scope of his employment to collectA factor made purchases for his bills, and his mere statement that he principal, and the latter made him has such authority is not sufficient, payments on account. The vendor though the bill is made out on one of wrote to the factor pressing him for the merchant's bill heads.

payment, and the letter came into the "The usual employment of a clerk in hands of the principal, who transmitted a retail store is to sell goods to cus- it to the factor and with a knowledge tomers or purchasers, and it is implied of its contents paid the factor the balfrom such employment that he has ance of the purchase money, Held, authority to receive pay for them on that he was liable over to the vendor such sale. But there is no implication for the balance so paid. Powell v. from such employment that he has au- Nelson, 15 East 65. thority, after goods are delivered and A payment to a broker is good, where taken from the store, to present bills the name of the principal is not disand collect money due to his employ- closed, though the purchaser knew ers, because it is not in the scope of the that the broker was selling for some usual employment of such clerks." principal. But to be valid it is necesHirshfield v. Waldron, 54 Mich. 649. sary that the mode of payment should

One Cox sold defendant an engine not vary from the terms of the original for plaintiffs, being their agent to sell. contract. Campbell z. Hassell, 1 Štark Another agent took notes from the de- 233; Thornton v. Meux, M. & M. 43. fendant for the price of the engine, See Drakeford v. Piercy, 7 B. & S. 515; made payable to plaintiffs. These 14 L. T., N. S. 443. notes were indorsed by Cox. Defend . A purchased goods of B through a ant sent to Cox some carloads of shing. broker, and paid the broker for them les to sell and pay the notes off, but partly by an advance on his general the notes were never paid. Held, not account with the broker before the to constitute a payment. Hooks v. delivery of the goods, and partly by Frick, 75 Ga 715.

cash on a settlement of accounts after If a clerk is authorized to receive delivery. The broker became bankpayment over the counter only, a pay rupt before paying over the money to ment made to him elsewhere is not B, and the latter brought an action

collection will authorize such agent to receive the money when due, and to deliver the note to the maker on payment. The

against A to recover such part of the ized payment to an agent, he cannot repurchase money as had not been paid voke that authority after the debtor to the broker in cash. Held, that it has, pursuant to the authority, given was a question for the jury, depending such a pledge to pay to the agent as upon the custom of the trade, whether would be binding in a court of law. payment to a broker in advance was a Hodgson v. Anderson, 5 D. & R. 735; good payment as against the principal. 3 B. & B. 842. See Pooley v. GodCatteral v. Hindle, 2 L. R., Č. P. 368. win, 4 Ad. & El. 64; 5 N. & M. 466.

Where goods are bought by a broker, The authority of the agent to collect the effect of a payment to the broker the debt is revoked by the death of the would seem to depend upon the time creditor. Lochenmeyer v. Fogarty, when it was made. If the principal is 112 Ill. 572; Cassiday v. McKenzie, 4 called upon for payment by the vendor W. & S. (Pa.) 282 ; s. C., 39 Am. Deci at the time the payment is due, it is no 76; Wallace v. Cook, 5 Esp. 117. defense that the principal had previous- i. Whelan v. Reilley, 61 Mo. 565; ly made payment to the broker; other. Yazel v. Palmer, 81 mil. 82; Padfield wise, if the day of payment is allowed v. Green, 85 Ill. 529; Johnson v. to pass without a demand on the prin Glover, 121 Ill. 283; Haines v. Pohlcipal by the vendor. Kymer v. Su- man, 25 N. J. Eq. 179; Camp v. Wigwercropp, Camp. 109. Compare Smyth gins, 72 Iowa 643 ; Thomassen v. Van v. Anderson, 7 C. B. 39; 18 L. J., C. P. Wyngaarden, 65 Iowa 687. Compare 114; Armstrong v, Stokes, 7 L. R., Q. Taylor v. Vingert, 33 Leg. Int., C. B. 598, 607; 41 L. J., Q. B. 253, 258. P. 238; Brown v. Taylor, 32 Gratt.

If the broker does not mention his (Va.) 135. principal, the latter is liable to the He is not authorized to receive vendor, though the broker becomes in- payment before it is due. Smith v. solvent and is indebted to his principal. Kidd, 68 N. Y. 130; s. C., 23 Am. Rep. Waring v. Favenck, 1 Camp. 85. 157. Compare Merritt v. Čole, 9 Hun

An auctioneer has a right to collect (N. Y.) 98. the money due on his sales, and may Possession of the securities by the maintain an action for it. Harlow v. agent indispensable evidence of his Sparr, 15 Mo. 184.

authority to collect. Jones on Mortg., A, being in the employ of B, and au- $ 964. thorized to collect money for him, but The burden of 'proof is on the without authority to deposit the money debtor to show that the note was in so collected, did deposit such money in the agent's possession when the paya bank and took certificates of deposit ment was made. Stiger v. Bent, in in the name of “B by A." A after- Ill. 328. To same effect, Eaton 7'. ward drew the money so deposited, and Knowles, 61 Mich. 625. re-delivered the certificate to the bank. An authority to receive the whole Thereafter B ascertained the fact that of a debt implies a power to receive such deposits had been made, and part. Whelan v. Reilley, 61 Mo. 565. brought suit to recover the amount But an authority to receive interest thereof. Held, that he was entitled to is not an authority to receive the recover. Honig v. Pacific Bank, 73 Cal. principal. Ritch vi Smith, 60 How. 464.

Pr. (N. Y.) 157; Cox v. Cutter, 28 N. Money was deposited by the treas. J. Eq. 13. urer of a committee in a bank in hisD efendant executed to plaintiff a name as such treasurer. The bank paid note payable in ten days at a certain it out to another party upon the order bank. Í'wo days afterwards he paid of the committee. Held, that the pay- the bank the amount of the note and ment was a valid one, Jay v. Concord took a receipt therefor, the note not Sav. Bank, 60 N. H. 277.

being there. Three days after the A payment to an attorney after no payment, the bank sent him notice of tice of substitution is not valid. Weist the time and place of payment, in v. Lee, 3 Yeates (Pa.) 47. Or of revo- which notice it was stated that notes cation. Parker v. Downing, 13 Mass. in the hands of the bank might be 465.

paid at any time before due. Two Where a creditor has once author- days after the sending of this notice 18 C. of L.-13

193

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