Opinion
March 8, 1907.
Maxwell C. Katz, for the appellant.
Henry J. O'Bryan, for the respondent.
The parties to this action are both attorneys. The defendant in 1904 was about to visit the State of Panama, and was employed by plaintiff to obtain, if possible, from the authorities of that State certain concessions relating to mineral properties. A contract was drawn between the parties whereby defendant agreed to use his best efforts in that regard, and plaintiff agreed to compensate defendant by giving him twenty per cent of whatever he (plaintiff) might receive upon the sale of the concessions so to be obtained.
It was expressly agreed that plaintiff was not to be liable for any traveling or other expenses nor for any disbursements to be made by defendant, unless first expressly authorized in writing or by cable.
It is claimed that this is not a valid or enforcible agreement, but that question does not seem to us to be important, as this action is not based upon the agreement.
Just before leaving for Panama defendant informed plaintiff that the President of that country made it a rule not to grant a concession respecting an outlying province without having first personally consulted the governor of the province, and that it would be well if he, defendant, were to be furnished with sufficient funds to enable him to offer to pay the expenses of a trip by the governor of the province in which the concessions were to be sought, from said province to the capital, and thereupon plaintiff gave to defendant the sum of $200 to be used for this specific purpose. We are unable to see that the purpose for which it was proposed to use this money was unlawful or immoral. Later, defendant cabled plaintiff as follows: "Concession granted by President. It should be published. Must pay immediately $310. Send money by telegraph instead of by mail." Plaintiff testified, and we see no reason to doubt him, that he believed that the sum asked for was necessary for publication in the official journal, stamp taxes and notarial fees, and he at once cabled the money.
Defendant had obtained no concessions, did not expend any money to bring the governor of the province to the capital, and, so far as it appears, never paid out any of the plaintiff's money for the purpose for which it was paid him, although he vaguely and mysteriously hints that he has expended all he received, and more, in some way which he refuses to disclose.
The plaintiff sues for an accounting, and his complaint was dismissed.
In Marvin v. Brooks ( 94 N.Y. 71) the Court of Appeals held: "Where an agent has been entrusted with his principal's money to be expended for a specific purpose, the former may be required to account in equity; and upon such an accounting the burden is upon him of showing that his trust duties have been performed and the manner of their performance." This rule is applicable to the present case. The moneys were given to defendant for specific purposes, not illegal, and he should be required to show how he expended them.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN and CLARKE, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.