Crane v. Onderdonk. paying the debt against Stout. Van Dyke accompanied the certificates with a blank power of attorney, and with instructions to Onderdonk to fill it out and transfer the stock to such person as Augustus T. Stout should name, on receiving from such person the amount of the indebtedness. Onderdonk wrote a letter to Van Dyke, after he received the certificates, acknowledging the receipt of them for the specific purpose in question. After he received the certificates from Van Dyke, he saw Stout, and was informed by him that the plaintiff Crane was the person who was to take up the stock. He was also informed by Stout that Crane had arranged with the firm of Van Wickle & Stout to advance the necessary sum for him to pay Van Dyke's claim, and that he, Stout, was authorized to act for Crane in the transaction. At the first interview which Onderdonk had with Stout, after receiving the certificates of stock from Van Dyke, he professed a willingness to carry out the transaction, but suggested, or agreed to a short delay, in order that some adjustment should be made of a claim for extra allowance, which Van Dyke thought he ought to have, and also of some alleged discrepancy in Van Dyke's account. Onderdonk received the certificates of stock about February 4th, 1871. On the 20th of that month, and while Stout and Van Dyke were endeavoring to effect the above adjustment, Onderdonk, without the knowledge or consent of any of the other parties, had 560 shares of the stock transferred to himself, and forty shares of it transferred to his sister, the defendant Sarah M. Field. On the 20th of February he wrote to Van Dyke that he had concluded to take the stock himself, and inclosed certificates of deposits, &c., to pay the same. Van Dyke testified that he replied to that letter, saying to Onderdonk, that his taking the stock was satisfactory to him, provided it was assented to by Stout. Stout did not assent to it, but in behalf of the plaintiff Crane, at once tendered to Onderdonk the money he had VOL. LXVII. 4 Crane v. Onderdonk. paid Van Dyke, and demanded the stock. Onderdonk rejected the tender, and refused to transfer the stock, and claimed that he had become the purchaser and owner of the same. The complaint alleges that Onderdonk had fraudulently made use of his position as custodian of the stock for delivery to the plaintiff, to convert it to his own use and to deprive the plaintiff of the value of the same, over and above the amount to be paid to Van Dyke, knowing that the plaintiff was ready and willing to pay, and for the purpose of securing to himself the profit of about $19,300; and asks judgment that upon payment or tender of the amount of Van Dyke's claim, the defendants, Onderdonk and Field, assign the 600 shares of stock in question to the plaintiff, and also for an injunction, &c. The judge decided that the allegations in the complaint were all true, and were fully proved, but that the plaintiff was not entitled to any relief whatever, and ordered judgment, dismissing his complaint without costs. He based his conclusions on the assumption that the plaintiff had no standing in court-that there was no such privity between him and Onderdonk as gave him any legal remedy. S. W. Fullerton, for the appellant. I. It will not be disputed by any one but that the defendant Onderdonk was guilty of a flagrant, wilful conversion of the stock in question, and that he ought not to escape with the fruit of his wrong. It is conceded on the part of the appellant, that if Onderdonk is to be regarded as the agent of Van Dyke only, and owed a duty to no one else, he cannot be made liable to any third person for mere nonfeasance or omission of duty in the course of his employment. But it is submitted that this is not the correct view to take of the case. Crane v. Onderdonk. In the first place it is well to observe the distinction between nonfeasance and misfeasance on the part of an agent. In respect to nonfeasance, or mere neglects in the performance of duty, the agent is liable only to his principal. But for his own positive or wilful torts he is liable to third persons. This distinction is observed in the case of Gutchess v. Whiting, (46 Barb. R., 139,) where the principal sent barley to his agent to sell for him, which he advised him was not new barley. The agent sold it to the plaintiff for seed barley, for which purpose, not being new, it was useless. The purchaser having sued the principal, and having failed to recover, brought an action against the defendant (the agent) for fraud, and the court held him liable as having acted ultra vires, and as having made himself the principal in the fraud. In Hecker v. De Groot (15 How. Pr., 314,) Clerke, J., said: "The defendants are sued for damages occasioned by a fraud committed by them. It matters not in what capacity they acted, or with whom they co-operated. They were instrumental in perpetrating the acts constituting the fraud. If, indeed, a person is the unconscious instrument of others in committing an injury, he is not personally liable for the consequences; but where he knowingly engages in an unlawful cause, whether for his own immediate benefit or not, he cannot escape liability by showing that he acted as agent.” But it is hardly necessary to quote authorities to show that for mere neglect of duty an agent is answerable only to his principal; but for an unauthorized fraud, he, and not the principal, is liable. It will be said, however, that Onderdonk practised no fraud or wrong upon Crane; for the reason that Crane was not the owner of, nor had any right to redeem the stock. The judge took this view of the case, and hence dismissed the complaint. We submit that it was incor Crane v. Onderdonk. rect, and that an entirely different one should have been taken. What is the plain truth of the case, as it was presented by the pleadings and proofs? It is simply this: Stout had the right to redeem the stock from Van Dyke. By his arrangement with Crane, he agreed with him that if he would pay his debt to Van Dyke he would surrender that right to him, and agreed with him that he might have and exercise it. Crane constituted him his agent to make the redemption. As such agent he corresponded with Van Dyke on the subject-named Onderdonk as the proper person to have the custody of the stock for delivery to Crane, on receiving from him the amount of Van Dyke's claim that he and Van Dyke finally agreed that the stock should be placed in Onderdonk's hands for that purpose-that Onderdonk received it pursuant to this agreement, and under an agreement on his part with Van Dyke and Crane, that he would deliver the stock to Crane on receiving from him the sum of Van Dyke's claim, and would pay over to Van Dyke the said moneys when received — that Crane, by his agent, tendered the required amount to Onderdonk, and demanded the stock; but he refused to deliver it and fraudulently converted it to his own use, by having it transferred to himself and sister. It is submitted that this is a proper view to take of the case. If so, it is not true that Onderdonk was the agent only of Van Dyke. By virtue of Stout's arrangement with Crane, the latter became entitled to demand and have the stock, on paying or tendering the debt due Van Dyke. By virtue of the agreement between Crane and Van Dyke, Onderdonk became the custodian of the stock for both. In other words, he became a party to an agreement with Van Dyke and Crane, that he would take, and hold, and deliver the stock and receive the debt. He received the stock for Crane, to be delivered up to him when Crane paid him the money. Having Crane v. Onderdonk. consented to become the custodian of the stock under the arrangement, he must be held to have agreed with both Van Dyke and Crane that he would deliver it on payment. He was, therefore, the agent of both the parties, and they all stood in such privity with each other, because of the entire arrangement, that it can be said that Onderdonk owed a legal duty to Crane. In fact it can be said, without any violence to the case, that the delivery of the certificates of stock to Onderdonk was, under all the circumstances, a delivery to the plaintiff, conditioned upon payment by him of the amount of the debt, and whenever he paid, or tendered the amount, his right to the stock was complete. Especially is this so, in view of the fact that neither Van Dyke or Stout have repudiated the arrangement, and both insist that Onderdonk shall deliver the stock to Crane, pursuant to the agreement. II. It was not necessary Crane should have made Stout any written transfer of the stock, or of the right to redeem it, to entitle him to make the redemption. Crane had a mere naked right to redeem, not evidenced by any instrument of writing. If he had possessed such an instrument or obligation from Van Dyke, the mere delivery of it to Crane by him under a parol agreement that he should pay the debt and have the stock, would have passed to him the right to redeem. But having no such writing, he makes a parol contract with Crane, by which he agrees that if he will pay his debt to Van Dyke he shall have the stock. By this agreement he surrendered to Crane his whole interest in the stock and in the right of redemption. (Hastings v. McKinley, 1 E. D. Smith, 273. People v. Tioga C. P., 19 Wend., 73. Gram v. Cadwell, 5 Conn., 489. Runyan v. Mersereau, 11 John., 534.) The judge conceded that if Stout had brought the action, it would have been well brought. It is submitted that Crane succeeded to all Stout's right under and |