Tuite v. Wakelee

         I. Whenever one man receives the money of another which he has no right to retain, the law implies that he receives it to and for the use of the owner, and to be paid to him on his request. There need be no privity of contract between the parties in order to support this action, except that which results from one man having another's money which he has not a right conscientiously to retain. (Mason v. White , 17 Mass. 563; Hall v. Marston, Id. 576; Eagle Bank v. Smith , 5 Conn. 71; Dickson v. Cunningham, Mart. & Yerger, 221; Towne v. Hanlon , 10 S. & R. 219; Bogart v. Nevins , 6 Id. 367; Morris v. Tarin, 1 Dall, 148; Barr v. Craig , 2 Id. 134; Murphy v. Barron, 1 Har. & Gil. 258; Wiseman v. Lyman , 7 Mass. 288; Might v. Butler, 6 Wend. 290; Eddy v. Smith , 13 Id. 488; Guthrie v. Hyatt, 1 Harring. 447; Farmers' Bank v. Brown, Id. 340; Tevis v. Brown, 5 J. J. Marsh, 175.)

         II. It is said that " the Court erred in admitting in evidence the certificate 'Exhibit A,' there being better evidence to prove who made the deposit."

         1. The Mint memorandum (Exhibit A) is not secondary evidence. It is an original document, issued by a publicofficer, delivered by the Mint to the depositor as an authentic statement of the weight and value of his deposit, and it is not a copy of anything. No book was produced or proved to exist which contained any record like it. It was the summary of all the entries in all the books.

         2. But it was admissible in evidence on another ground. The two expresses operated in connection, and advertised to do business in that way. John Anderson was in fact agent at Weaverville, and Wakelee, the defendant, at San Francisco, for both expresses, as to all packages sent from Weaverville to San Francisco. When John Anderson received the dust from the plaintiff, and contracted for the transportation of the dust to the Mint and the deposit of it there for coinage for account of the plaintiff, he contracted for both concerns and for the defendant, and he gave to the plaintiff a writing in the form of a receipt which contained the evidence of that contract. The defendant received this document from the Mint, and sent it to Anderson to be delivered to the plaintiff; and it was by him delivered to the plaintiff upon the surrender of the written contract of bailment. Both the defendant and Anderson, andall concerned, were therefore estopped from denying that the written statement thus delivered by them to the plaintiff was true in every word, letter and figure.

         3. It was also admissible as part of the res gestoe to show the interpretation which the defendant and his principals placed upon their contract with the plaintiff. They gave it to him as evidence of performance, and it was therefore evidence of what that contract was--that is, to deposit the dust in the name of plaintiff.

         III. The third error assigned is, that the Court erred in refusing to admit in evidence the entry from the weight book, or " deposit book," to prove by whom the money was deposited.

         1. It does not follow because the evidence offered is a public record, that therefore it was admissible. It must not only be competent testimony, but it must be pertinent; and the evidence offered was not pertinent. The defendant had himself already introduced and put in evidence the book of " gold warrants paid," in which, under a column headed " Rec'd of the U.S. Br. Mint the sums set opposite to our respective names, in full for Mint Recpts. numbered as in the margin," he had signed " G. H. Wines & Co., forPat. Tuite." He had therefore proved by his own unimpeachable testimony, by a public record, that he had received it for Patrick Tuite, the plaintiff. It was therefore impertinent to inquire in whose name the original deposit was made. It did not tend in any respect to prove any defense.

         IV. The fourth error assigned is, that " the Court erred in refusing to admit the receipt of Rhodes to prove the payment by Wines & Co."

         We do not question the principle of law cited by the defendant, nor did the Court below reject the evidence on that ground. We admit that the evidence was competent; but we insist that it was impertinent, and it was ruled out on that ground. The receipt was offered to show that Wakelee paid the money to Rhodes. We did not deny that the receipt was competent evidence to prove that fact, but we insisted that the defendant could not be permitted to prove that fact. It was already in evidence that the money belonged to the plaintiff; that the defendant knew it belonged to the plaintiff; that he had received it as the plaintiff's money, and for the plaintiff: what right then had he to pay it to Rhodes or any one else? Rhodes had no authority to receive it forthe plaintiff, and does not pretend to have, and did not receive it for the plaintiff. He signs his receipt simply " Jesse Rhodes."

         V. Defendant had no authority from Wines & Co. to receive the money from the Mint. His duty as agent was simply to fulfill the contracts of Wines & Co. as expressmen, to carry out the contracts made by them in the capacity. The contract was to carry the dust to the Mint, and leave it there to be coined for account of Patrick Tuite. When they had done that their contract was fulfilld, and Wines & Co. were discharged. They had no authority to take it back again. (Adams & Co. v. Blankenstein , 2 Cal. 413.) Taking the proceeds of the deposit out of the Mint was no part of the duty of Wines & Co. as common carriers--they were not employed by us to do that--and Wakelee had no authority from Wines & Co. to do this act in their name, and he did not bind them, and therefore he bound himself. (Story on Agency, secs. 264, 265; Addison on Contracts, 426, 427, 428.)

         Defendant had notice to retain it, just as much as if the plaintiff had told him in express terms not to pay it over to Rhodes. He knew that the money belonged to the plaintiff, and thatthe plaintiff was at Weaverville; he was privy to the whole transaction from the commencement. It did not come to him from Jesse Rhodes; it came to him from the plaintiff. Rhodes & Whitney was only the carriage by which it came; and when they ceased to be such a carriage, and the defendant ceased to connect with them as carriers, their whole relation was changed, and he had as good notice not to pay it over as if the plaintiff had notified him in express terms.

         There is no pretense that the defendant paid the money over to his principals. Counsel assumes that receiving the money for Wines & Co. is in effect paying it to them; because, being their agent, the moment it is in his hands it is in law in their hands. But in such cases the agent is himself liable as principal. (5 Phil. Ev. 118.) Paying to Rhodes was not paying it to Wines & Co., for Rhodes had no authority to receive for Wines & Co. Nor was it in discharge of any duty of Wines & Co., because, as I have before shown, Wines & Co. were not to pay the money to Rhodes. And this doctrine does not apply at all where the money is received tortiously. (Addison on Contracts, 426-428.)

         JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.

         OPINION

          COPE, Judge

         We adhere to our former conclusion in this case. The evidence fails to disclose any authority on the part of either Wines & Co. or Rhodes & Co. to receive the money in question. It is clear, in fact, that no such authority existed, and that the engagement of these parties terminated upon the gold being deposited at the Mint in San Francisco. The terms of this engagement were known to the defendant; and in withdrawing the proceeds, he must have been aware that he was acting outside of the scope of his employment as agent. Of course, he could do for his principals nothing which they could not do for themselves; and in assuming to act for them in a matter to which he knew their authority did not extend, he incurred a personal liability from which he had no power to relieve himself.

         Judgment affirmed.