Opinion
June 16, 1922.
White Case [ Vermont Hatch of counsel; Joseph M. Hartfield with him on the brief], for the appellants.
Osborn, Fleming Whittlesey [ George N. Whittlesey of counsel], for the respondent.
The presence of the jury upon the trial was waived, and it was stipulated that the case be tried before the judge, and that he direct a verdict with the same force and effect as if a jury were present. The facts of the case were almost entirely stipulated, and from them it appears that the defendant was the son of William T. Evans, who was the treasurer of Mills Gibb; that the plaintiffs were receivers of the corporation of Mills Gibb; that on November 1, 1910, defendant drew a draft on Mills Gibb to the order of George W. Jenkins for $5,400; that on the same day another draft on Mills Gibb for $135 to the order of G.W. Prime was drawn. These drafts were drawn for the personal indebtedness of the defendant, who was not an officer, employee or in any wise connected with the corporation of Mills Gibb, nor was the said corporation indebted to him in any sum whatever. These two drafts by indorsement came into the hands of the Chase National Bank and were presented by said bank to Mills Gibb, and a check of Mills Gibb on the Chemical National Bank of the City of New York to the order of the Chase National Bank for $5,535 was drawn by William T. Evans, as treasurer, and delivered to the Chase National Bank, and thereafter charged to the account of Mills Gibb in the Chemical National Bank.
The complaint was brought on the theory of money had and received, but it was stipulated on the trial that if upon the facts presented the plaintiffs are entitled to recover from the defendant either on the theory of money had and received or on the theory of debt, the complaint should be deemed broad enough to justify a recovery on either ground.
The defendant relies upon the decision of Mr. Justice GREENBAUM in Martindale v. DeKay ( 101 Misc. Rep. 728; affd., 180 App. Div. 926; affd., 224 N.Y. 585). In my opinion the present case differs materially from the De Kay case, in which the check of the corporation was given to the third person by the treasurer in payment of his own debt, and in which it appeared that the treasurer and other officers of the corporation had customarily drawn checks of the corporation for their personal use and benefit, and that the same were charged to their account, and that their salaries and other sums that they received from time to time were deposited with the corporation and credited to their account.
That action was brought on the theory of money had and received, and Mr. Justice GREENBAUM held that the most that could be said was that the defendant was put upon inquiry from the fact of the corporate check being given to pay the individual debt; and that if investigation had been made, the above facts would have been discovered, which would have shown that the treasurer had the right to draw the check for that purpose. In this case, however, the draft on Mills Gibb was made by an utter stranger to whom they were not indebted. It is not claimed that payment of these drafts were intended as gifts by Mills Gibb to the defendant. There being, therefore, no consideration whatever for these drafts, the payment of them would be considered to be a loan which the defendant would be presumed to have promised to repay. Stress is laid upon the fact that the check that was drawn by Evans to the order of the Chase National Bank was to be charged to the account of Evans. Inasmuch as no party to this action received that check, I am of opinion that it has no bearing upon the case whatsoever. The situation is the same as if the president of Mills Gibb had drawn the check; nor does the direction of Evans, the treasurer, to charge the amount of the drafts to his account relieve the defendant, for the reason that it appears that at that time the treasurer was largely indebted to the corporation, and, therefore, the charging of this amount to his account was not a payment by him of the draft, but merely an increase in his overdraft of his account.
It seems the most that can be said with relation to the parties to this action is that the defendant herein drew a draft on Mills Gibb on a promise or expectation that William T. Evans would reimburse Mills Gibb for the loan of money. William T. Evans not having repaid the money to Mills Gibb, the defendant herein is liable.
The judgment and order should be reversed, with costs, and judgment ordered for the plaintiff for the full amount, with interest and costs.
CLARKE, P.J., LAUGHLIN, DOWLING and SMITH, JJ., concur.
Judgment and order reversed, with costs, and judgment ordered for plaintiff for the full amount, with interest and costs.