Jonathan C. Merrill versus The Bank of Norfolk, 19 Pick. 32

Morton J. delivered the opinion of the Court. Lamson was the agent of the plaintiff. His acts were the acts of the plaintiff. The sale bound the plaintiff, transferred the property to the purchasers and vested the proceds in the plaintiff. Kelley v. Munson, 7 Mass. R. 319. The factor sold at the risk of the plaintiff, and had actually received his commissions. The note was not payable to the factor; but had it been so, it would not have affected the plaintiff’s right. The indorsement of the note by the factor did not make, or show, him to be the owner of it.

As he was the plaintiff’s agent for the collection of the note and had the possession of it, payment to him would have been payment to his principal; and the payer would not be responsible for the misapplication of the agent. Even if the factor’s son deceived the defendants, as.to the ownership of the note, the deception could not impair the plaintiff’s interest in it; nor could the act of the defendant, in giving credit for the proceeds to the factor, even if done at his request, divest the plaintiff of his property.

It did not amount to payment; and nothing short of payment either to the plaintiff or his agent, would discharge the defendants from their liability. The plaintiff may follow the property, however it may change form or in whosesoever hands it may be found, until his rights be divested by his own act or authority. Thompson v. Perkins et al. 3 Mason, 232; Denston v. Perkins et al. 2 Pick. 86; Chesterfield Manuf. Co. v. Dehon et al. 5 Pick. 7; Kelly v. Bowman and Tr. 12 Pick. 383.

The defendants having the plaintiff’s money in their hands, for which a demand was made before the action was commenced, are liable for the amount, with interest from the time when it was demanded. Judgment on the default.