Crane v. Onderdonk. by virtue of the agreement between them, and having tendered the debt owing by Stout to Van Dyke, he entitled himself to the stock, and hence the action was properly brought by him. III. Assuming that Stout had a legal remedy against Onderdonk, then he was entitled to seek it in the present form of action. I. The Smith & Woodward, for the respondents. plaintiff has no standing in court upon which he could found a claim for the relief sought in the complaint in this action. The plaintiff, as the friend of A. T. Stout, was to furnish the money for Stout, to enable him to pay the indebtedness to Van Dyke, and to take an assignment of the stock as security for the money advanced. II. The arrangement or agreement upon which this action was founded, purports to have been made between the plaintiff and John Van Dyke, as the principals, and by and through Augustus T. Stout, as the agent of the plaintiff, and Peter C. Onderdonk, one of the defendants, acting as agent for Van Dyke. It was a part of the arrangement that the certificate of the stock was to be transmitted to some person near New York, who should transfer and deliver the same, and receive the money for Van Dyke; and the complaint expressly alleges, that Van Dyke constituted Onderdonk his agent and attorney in fact, to deliver the stock with the proper transfer, and receive payment of the money due to Van Dyke; and that the defendant Onderdonk had fraudu lently made use of his position as the agent and attorney in fact of Van Dyke. If the plaintiff has a cause of action against any one, it is not against the defendant Onderdonk, but against John Van Dyke. Onderdonk was not the agent of the plaintiff, and owed him no duty. He was the agent of Van Dyke, and for a neglect to discharge his agency he is amenable to his principal, Crane v. Onderdonk. and to no one else. If third persons are injured by the neglect of a known agent, the rule is respondeat superior, and their remedy is against the principal and not the agent. (Denny v. The Manhattan Company, 2 Denio, 115; affirmed 5 Denio, p. 639. Phinney v. Phinney, 17 How. Pr. R., 197.) In Colvin v. Holbrook, (2 N. Y., 126,) Justice Gardiner, at page 129, says: "It is also settled, if anything can be established by authority, that an agent is not liable to third persons for an omission or neglect of duty in the matter of his agency, but that the principal is alone responsible." And after citing authorities, adds: "The question must be deemed at rest in this state by the decision in Denny v. The Manhattan Co. (2 Denio, 118;) affirmed in the Court for the Correction of Errors." The agent is not, in general, liable to third persons for his own nonfeasances or omissions of duty in the course of his employment. His liability in these latter cases is solely to his principal, there being no privity between him and such third persons; but the privity exists only between him and his principal. (Story on Agency, sections 308, 309.) The principal is liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances and omissions of duty of his agent in the course of his employment, authough the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts or disapproved of them. In all such cases the rule applies respondeat superior, and it is founded upon public policy and convenience, for in no other way could there be any safety to third persons in their dealings, either directly with the principal or indirectly with him, through the instrumentality of agents. (Story on Agency, § 452.) III. The position taken by the plaintiff's counsel, on the argument of this case at Special Term, that Onder Crane v. Onderdonk. donk was the agent of the plaintiff, cannot be maintained. It is nowhere in the complaint alleged that he was the agent of the plaintiff, and there is no evidence in the case to establish such a position; on the contrary, as shown in the first point, Onderdonk is expressly made the agent of John Van Dyke, and of no one else. By the Court, BRADY, J. The plaintiff in this action was not entitled to the stock held by Van Dyke, until the amount for which he held it as collateral was paid. Onderdonk, to whom Van Dyke sent it for delivery to the person paying the lien upon it, converted it to his own use before any payment was made, advising Van Dyke that he had thus taken it, and remitting payment of the debt due the latter. Onderdonk, having received the stock for the purpose of transferring it to such person as Stout designated, transcended the power conferred upon him, and was guilty of misfeasance. towards the owner of, or person entitled to, its possession. Although an agent, for nonfeasance and omissions of duty, is not liable, except to his principals, the rule is otherwise when the act complained of is misfeasance. In all such cases he is personally responsible, whether he did the wrong intentionally, or ignorantly by the authority of his principal; for the principal could not confer on him any authority to commit a tort upon the rights or property of another. (Story on Agency, $311, and cases cited. Hecker v. De Groot, 15 How. Pr. Rep., 314. Gutchess v. Whiting, 46 Barb. R., 139.) The question presented, and upon which the success of the appellant here depends, is, therefore, whether the plaintiff acquired, by his agreement with Stout and subsequent arrangement relative thereto with Van Dyke, any title or interest in or to the stock which enables him to maintain this action. It appears that he had, at the solicitation of Stout, agreed to furnish the money necessary to discharge Van Dyke's debt, and Crane v. Onderdonk. had made the necessary arrangements for the advance of the money to him by Van Wickle and Stout, and by depositing with them securities for their protection. This was a sufficient consideration for the agreement between him and Stout. (Story on Contracts, § 431, and cases cited-although the consideration was not disputed between them.) And the agreement thus made was ratified by the employment of Stout as his agent to obtain the transfer of the stock, which the latter proceeded to do. Stout never questioned the right of the plaintiff to the transfer. On the contrary he was desirous that it should be made, and the fund to accomplish it, and for which the plaintiff had provided, was awaiting an adjustment of the sum due from Stout to Van Dyke. All this was well known to the defendant Onderdonk, with whom, as the representative of Van Dyke, the negotiations were carried on. It also appears that an amount sufficient for the purpose was tendered by the plaintiff to Onderdonk and the stock demanded, but the money was not received, and the stock was not transferred or delivered. It is true that this incident was subsequent to the appropriation of the stock by Onderdonk; but it was, with the exception of forty shares, in his possession, and the latter doubtless under his control. The result of these facts and conclusions is that the plaintiff was the assignee of the right of redemption, and ready to comply with the duties which devolved upon him in virtue thereof, which the pledgor assisted him in discharging. He was therefore, pro hac vice, the owner. He possessed all the rights of Stout, and was endeavoring to enforce them. The defendant Onderdonk was not in a position either to dispute or to interfere with them. He could not take advantage of any assumed defect in the plaintiff's title or interest, in the face of the fact that the actual owner and the latter were acting in concert and for a lawful purpose. The right of Stout to remove the stock, to change its custody Crane v. Onderdonk. on the payment of the lien upon it, was unquestionable, and the attempt to interfere with the exercise of such a right would be wholly unwarranted. The equitable interest in a judgment may be assigned by a delivery of the execution. (Dunn v. Snell, 15 Mass., 481.) The equitable interest in a chose in action may be assigned, for a valuable consideration; and it is not necessary that the assignment should be in writing. (Parsons on Cont., vol. 1, p. 197, and cases cited.) And if the person seeking to enforce a demand have the legal or equitable title, if he have the whole interest, he may maintain an action. (Hastings v. McKinley, 1 E. D. Smith, 277.) The assignment was accompanied by a delivery to the plaintiff of the evidence of the contract between Van Dyke and the assignor, so far as it could be. The correspondence between Van Dyke and Stout furnished the proof of the possession of the stock by the former as collateral, and his assent to the transfer in accordance with the arrangement made by the latter; and this was equivalent to the delivery of an execution or contract. The conclusion which must follow these views is, that the dismissal of the complaint was erroneous. The defendant Onderdonk was a wrongdoer, and was not, under the circumstances, in a position, as already suggested, to question the plaintiff's right. He had acted in contravention of his trust to Van Dyke and his quasi trust to Stout and to the plaintiff, whose interests he knew and disregarded. I think the judgment should be reversed. Judgment reversed. [FIRST DEPARTMENT, GENERAL TERM at New York, November, 1873. Ingraham and Brady, Justices.] |