Anderson v. The President, Directors, & Co. of the Highland Turnpike , 16 Johns. 86 ( 1819 )

Spencer, J. delivered the opinion of the Court.

The plaintiff moves to set aside the report of the referees, on the ground, that they have decided that the plaintiff had been paid, (except about 13 dollars,) the amount of his account, by the transfer to him, by the defendants, of forty-five shares of stock in the Highland Turnpike Company. It is contended, that the referees erred, in considering the shares a payment: 1. Because, though there was proof of an agreement by the plaintiff to accept stock as payment of Jhis account, yet the agreement was never executed by a tender of the stock by the defendants, or the acceptance thereof by the plaintiff; 2. That it has been discovered since the reference, that no stock had ever been transferred to the plaintiff, the transfer having been made to James Anderson.

The proof is very decisive, that it was agreed between *^e parties, that the plaintiff’s demand should be settled, by giving him the stock of the company for the amount of his account. It is equally clear, that the plaintiff agreed to accept the stock, in satisfaction of his account, and that he promised to call the next day at the office of Mr. Brinckerhoof, with whom the stock was agreed to be left, to receive the same. That directions were given, and certificates accordingly made out; and, as was always supposed, until recently, in the name of the plaintiff, and left with Mr. Brinckerhoof, to be delivered to the plaintiff. That the mistake in inserting the name of James instead of John, in the certificates, was never discovered until since the report, and that immediately thereafter, the mistake was rectified, and the new stock tendered.

The mistake in the Christian name of the plaintiff in the certificates of stock, cannot be considered as altering the question between the parties. That it was a mere unintentional mistake, is evident, and the plaintiff can suffer no prejudice by it, as the stock has been tendered to him, according to the original intention of the parties. It was his own fault that he did not receive it; but he can coerce its delivery, if the report be confirmed. The only question, then, is, whether the agreement to accept stock, and that certificates should be made out and left with Mr. Brinckerhoof for the plaintiff, and the performance by the defendants of their part of the agreement, is binding on the plaintiff as an accord and satisfaction of his demand. If Mr. Brinckerhoof is to be regarded as the plaintiff’s agent for the pufcwpose of receiving the stock, then, in judgment of law, his receiving it is a receipt by the plaintiff.

An accord, not executed, is no bar to the pre-existing demand, but if executed, by delivering a collateral thing which is agreed to be accepted as satisfaction, it is a bar. (5 Johns. Rep. 386. 3 Johns. Cas. 243.) In the case of Bird, Savage, and others, v. Caritat, (2 Johns. Rep. 345.) this Court decided, that a plea of accord and satisfaction, which stated the delivery of the negotiable nole'of a third person, to one F. C., for and on behalf of the plaintiff, without showing that F. C. was the plaintiff’s agent for that purpose, was bad. This case furnishes the strongest implication, that the plea would have been, good, had it been stated that F. C. was the plaintiffs agent for that purpose.

Upon general principles, it does not admit of a doubt, that an act done by or to the agent of a party, of a matter resting in pais, is equivalent to its being done by or to the principal. The facts establish, that Mr. Brinckerhoof was, by the agreement of both parties, the depositary of the certificates ; his receipt of them, was the receipt of the plaintiff.

Motion denied.