Adams v. Cole , 1 Daly 147 ( 1861 )

By the Court.

Hilton, J.

Gould was the general agent or clerk of the defendant, to make sales of goods and receive payment therefor, and for any deliberate fraud or deceit practiced by Gould within the scope of Ms employment, the defendant was liable, upon the ground stated by Lord Ch. J. Holt, in Hern v. Nicholls (1 Selk. 289), that as some one must be a loser by the deceit, it is more reasonable that he who employs and confides in the deceiver should be the loser than a stranger. Smith’s Mercantile Law, 182 : Taylor v. Green, 8 Carr. & P. 316.

But it is unnecessary to place our decision of the present case on this principle, as there was some evidence before the justice to show that Gould paid over to the defendant the money received by him from the plaintiff, on June 4th, 1858. We must, therefore, assume that the justice found such to be the fact, and as there cannot be a doubt from the testimony that this money was paid to Gould by the plaintiff, under mistake of fact, in respect to which both parties were equally bound to be informed, it follows that the judgment given was right, and should be affirmed. Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, 3 N. Y. 230.

Judgment affirmed.