#### ABNER LAMB et uxor *v.*SAMUEL TROGDEN, et al.

Where a vendor, in answer to an inquiry of his vendee how he would have the purchase money sent, whether by mail or private hand, replied that he would leave it to the “ better judgment ” of the vendee, *it was*held,, that the money, if sent by mail, was at the risk of the vendor.

Money sent by mail and taken out of the post office to which it was directed *k*by one who had been requested by the party to whom it was sent to takeout his letters, will, in a contest between him and his correspondent, be considered as having been received, though the person who took it from the office embezzled it.

If, upon a bill for an account, an agreement be set up by the defendant as a bar to the account, the plaintiff cannot impeach the agreement as unreasonable, and one not proper to be executed, without filing a supplemental bill and distinctly putting its fairness in issue.

The complainants filed their bill in 1834, therein charging that Samuel Trogden the elder, died in the year 1831, intestate; that administration on his estate was granted to the defendant Samuel Trogden ; that the personal estate of the intestate after payment of debts and expenses of administration was distributable between his widow and eight children, of which children the female complainant was one, and the defendant Samuel another; that the said defendant had accounted with, and paid over unto the others entitled to distributive shares, either the whole or a part of their just dues, but had not accounted with the complainants for their part. The bill prayed for an account from the said defendant as administrator, and a payment of what should thereon be found due unto the complainants, and for process against him and the other persons interested in the distribution of the intestate’s estate. The defendant Samuel Trogden set forth in his answer that an actual division was made of the slaves of the deceased, the only specific personal property of his intestate, among the widow and next of kin, in which division, the negro^ slave Miles, valued at $300, was drawn *191by the complainants, and they charged with the payment of f 21-iVoi 'because of the excess of value beyond their dividend in said property; and that the complainants received this negro under said division, and placed him in the hands of the defendant as their agent; that the complainants were also entitled to receive from him the sum of $82-¿Vó, on account of their distributive share, and had a small piece of poor land which had descended to the female complainant from her father; that the complainants resided in Illinois, that the negro slave could not be carried into that state, and the complainants being desirous of disposing of all their interest in the above property, the plaintiff Abner proposed to the defendant to sell to him the whole thereof for the sum of $400, which proposition the defendant accepted, and in execution of this agreement, paid the said sum in full, and in this manner settled with the plaintiffs and discharged all their claims against him. The defendant further stated that the plaintiff Abner returned to this state in the year 1834, and alleging that the money aforesaid had not been paid, insisted that the said agreement had not been executed by the defendant, and filed this bill.

As ‘the other defendants were but formal parties, it is unnecessary to state their answers. There was a general replication to the answer of the defendant Samuel Trogden, and the parties proceeded to their proofs. From these it appeared that the division of the slaves was made on the 26th of May, 1832, and Miles allotted to the plaintiffs at the price and subject to the charge stated in the defendant’s answer, and was actually received by them. On the 2d March, 1833, the plaintiff, Abner Lamb, caused to be written a letter dated of that day, in Edgar County, Illinois, and postmarked “ Paris, Illinois, March 10,” addressed to the defendant, in which he stated that he was informed that Miles was in great distress to know what the plaintiff meant to do with him. that if he could get $300 in good lawful money of the United States for Miles, he would take it, provided the money was sent by the first of November — “ or,” he adds, “ otherwise I will make a lumping settlement with you; if you will send me $400 by the time above stated in lawful money of the United States, I will give you a fall receipt and a deed to my share *192of the land, by your sending me a plat of said land, and if my offer is to be complied with in part or in the whole, I want to know it by the 15th of July next.” In answer to this the defendant caused a letter to be written on the 15th July, directed to the plaintiff at Edgar County post office, Illinois, in which he thus noticed the proposition: “ I understand your proposition to be this, that for the sum of $400, you will give me a full receipt as a distributee, also a bill of sale for Miles and a deed for your part of my father’s land. I am willing to accept your proposition and give you the sum of $400, which I will send you by the time specified in your letter. In the mean time 1 want you to answer this letter immediately, and let me know if I understand your letter correctly. Let me know *how you*would have the money sent, whether *by mail, or by hand."*To this there came a letter in reply admitted to have been written by authority of the plaintiff Abner, dated Paris, Illinois, August 3d, 1833, in which it was remai'ked as follows: “ I perceive you understand me perfectly as respects my wife’s part of her father’s estate. As soon as I shall have received the $400 as consideration as stated, I will convey all of said estate as may be requisite and legal. As respects the sending of the $400, whether by mail or private hand, *that*I will leave to your better judgment. All I ask is the $400 in specie or in the United States paper, as no other bank paper will go in the office here. As to the time I wish to have the $400 here, you can refer to the letter I sent you on the subject. I think it was on the first of November.” On the 25th of October, the defendant forwarded by mail a letter addressed to the plaintiff at Paris, Illinois, containing the right hand halves of four U. S. bank notes oí $100 each ; and the receipt of these was acknowledged in the plaintiff’s name by a letter, dated November 25th, 1833, postmarked “ Paris, Illinois, December 8th, 1833,” and received in regular course of the mail, directing the defendant to forward the remaining halves in the same manner; and thereupon without delay the remaining halves were forwarded accordingly. It seemed that neither of the parties was very conversant with business, and that all their correspondence was carried on by the aid of their friends. The plaintiff denied that he *193ever received the notes, and denied'that the letter purporting to be his, dated the 25th November, was written by his authority. i

*Mendenhall*and *Winston,*for the plaintiffs.

No counsel appeared for the defendants in this Court.

Gastoíy, Judge,

after stating the case as above, proceeded: The controversy between the plaintiffs and the defendant Samuel Trogden, depends upon the agreement of sale and payment therefor set up in the defendant’s answer.

We do not deem it necessary to analyse minutely the respective depositions which have been taken. We' are satisfied that the letter of the 25th of November was not written with the plaintiff’s knowledge, and that the money did not come into *his hands,*but we are also fully satisfied that the • notes reached the post office of Paris; that the letters containing them were taken out of the office by one Hugh M. Elder, a neighbor of the plaintiff, and a man then sustaining a fair character, who had been requested by the plaintiff to take his letters out of the post office, and that the said Elder forged the letter of the 25th of November, and applied the notes so transmitted to his own use. Upon these facts, it seems to us, that the loss of these notes must fall on the plaintiff, for two reasons. The first is, for that his letter of the 3d of August, in answer to the application in the defendant’s letter of the 15th of July, to know *how*he wished the money sent, whether by mail or by a private hand, amounted to a direction to the defendant to send it by mail if in his judgment that mode was preferable. If the plaintiff intended that the risk of thus transmitting the money should be the risk of the defendant, he was bound in good faith to say so explicitly, and not leave it to the defendant’s discretion as a prudent agent. And secondly, the loss must be his, for the money did come into the hands of one who for this purpose must be regarded as the agent of the plaintiff. It has been attempted to show that the defendant well understood that he was to incur the hazard of this mode of remittance, because, since the pending of this suit, he exerted himself by an agent to secure payment from Elder, and obtained a note payable to himself for the full amount so *194embezzled by Elder, which note is now in suit. But the testimony clearly establishes that the agent acted as well by ^e pHintiff’s direction as by that of the defendant, and for the benefit of the person, whoever it might be, on whom the loss might be thrown. And we find in the record an express agreement that “ the proceedings to collect the debt from Hugh M. Elder, shall not prejudice either party.”

It has been insisted for the plaintiffs that if the *$400*are to be considered as having been paid by the defendant upon this agreement, they are nevertherless entitled to an account in order to ascertain whether the agreement was reasonable and one proper to be executed. We do not think so. The bill has been filed for an account as though no agreement had been made, much less executed, not to be relieved against it. If the plaintiffs intended to impeach the agreement, but were not aware when their bill was filed, that it would have been insisted upon by the defendant, they should have filed a supplemental bill and distinctly put its fairness in issue. There is no apparent unfairness in the transaction, and supposing it fair, it would be impracticable to ascertain how much of the $400 was paid on account of the negro and land which were the legal property of the plaintiffs, and how much on account of their distributive share. The testimony on both sides has been directed to the controversy between the parties whether the agreement has been in fact executed or not. It has been executed as to the defendant, and neither the frame of the bill nor the proofs will warrant us in setting it aside against him.

In our opinion the bill must be dismissed — but we do not think under the circumstances of the case., that the plaintiffs should be mulcted with costs — except the costs of the formal defendants.

Per Curiam. Bill dismissed.