3 Ala. 206 | Ala. | 1841
Thus far'the duties are imposed by the general law of agency, and the law merchant; but doubtless, other duties may arise out of local laws’; as if damages are given upon the protest of a bill or note; or, if a protest is essential to fix the liability of any party to it.
In the case first cited, the evidence showed a local custom,
We are reluctantly compelled to differ from these Courts, because, it seems obvious to us that local-custom has been considered by them as the general law of agency. If it be true, that an agent, or even a notaiy, is bound by law, without instructions, to give notice to the indorsers of a note, the inquiry might be made — how is the residence of each of them to be known to him; and, if not, from whom is he to derive the necessary information, to enable his action to be efficient for the security of tho holder, and for indemnity to himself? Tn the very nature of things, there are matters, of which the agent and notary, both, may, and oftentimes must, be entirely ignorant ; and to impose upon either of them the necessity of ascertaining facts, with certainty, would be an intolerable bur-then. Independent of the fact, that these decisions are in direct conflict with the elementary writers, Beames and Paley, whose writings have almost the weight of adjudication, they are adverse to the opinions, of some at least, of the most distinguished jurists of our own country. Chief-Justice Parsons, says “ a person appointed a factor, to cause a bill to be presented, is intrusted with no other powers, and it is his duty to notify his principal. The factor may not know to which of the prior parties the principal intends to resort; and, if he does, he may not know their domicils ; as he has no interest in the bill, or privity with the parties.” Colt v. Noble, 5 Mass. 157. The contest in that case was, between the holder and the indorser of a bill, the latter claiming to be discharged, because notice of the dishonor of the bill was not given to him by the factor ; and when if it had been so given, it would have reached him some months sooner than it did from the holder, who resided at Madras. The same doctrine is held in the case of Tunno v. Lague, 2 Johns. Cases, 1.
It is well observed by one of our own elementary writers» that “ the loss which the principal has sustained, by reason of the negligence of his agent, is to be taken as the true measure of damages, in an action founded upon that negligence. This appears to follow from the very definition of damages, they being a recompense given by the jury for the wrong or injury done to the party.” 1 Livermore on Agency, 398. The same principle seems to have furnished the rule for the decision in the case of Russell v. Palmer. 2 Wilson, 325. The defendant^ as the attorney of the plaintifij had recovered a judgment against a debtor, and omitted to charge him by a ca. sa. after he had been surrendered by his bail; in consequence of which he was superseded. The action was case-, for the negligence, and it was ruled by the Judge who tried the case, that the defendant was liable for the whole debt; but the Court awarded a new trial on account of the misdirection, because the action sounded merely in damages, and the jury ought to have been left at liberty to find what damages they thought fit. On the last trial, the jury found only £500, (the debt was £3000,) as it appeared the debtor was not perfectly insolvent. Now, it seems to be evident, from this case, that ii the plaintiff, notwithstanding the debtor had been discharged from custody, by the negligence of the defendant, could bjfi. fa. have obtained satisfaction of his judgment, nominal damages merely would have been given.
In the case before us, can the owner of the note be said to have sustained any more than nominal damages, if he has a perfect remedy on it against a solvent party ?
In the case cited from Wilson, the plaintiff had two remedies ; one by ca. sa., which, by the common law, was a satisfaction of the debt; and the other, was by a fi. fa., which might be productive or otherwise. The debtor is discharged
In the present case, if the maker of the note is solvent, it can not be said that the owners have sustained actual damage, to ••the amount of the note, although the indorser has been discharged. Indeed, this very question is noticed by Beames, who says “ when any person has bills sent to him to procure an acceptance, with directions to return them, or hold them at the order of the seconds, &c., and the person to whom they are sent, either forgets or neglects to demand acceptance, or he suffers the party on whom they are drawn, to delay their acceptance, and the drawer, in the interim, fail, he is certainly very blame-worthy for his carelessness and disregard of complying with his obligation ; though this will not subject him to the payment of their value.” He adds, “ But if he should be urged to procure acceptance and payment of a bill sent to him, and should protract or defer the getting it done, and the ac-ceptant, being ignorant of the drawer’s circumstances, declares he would have accepted it, had it been timely presented ; the person guilty of the neglect will be obliged to make good the loss that has happened to his correspondent, purely through his omission and carelessness.” Beame’s Lex Mer_bills of ex., fig. 18.
Some reliance is placed, by the defendant in error, on an expression of Chief Justice Marshall, in the case of The Bank of Washington v. Triplett & Neale, (1 Peters, 26.) The facts of that case were, that a bill drawn by one Briscoe, of Alexandria, on Carnes, at Washington city, payable to, and indorsed by Triplett & Neale, was sent to the Bank to procure acceptance and payment. When the bill was presented, at the residence of Carnes, for acceptance, he was absent in Baltimore. The bill was not protested for non-acceptance, and after protest for non-payment, notice was given to Briscoe, who refused to pay it. Evidence was also given, as to the incompetency of Carnes and Briscoe, to discharge the bill, at the time of its
It is evident, we think, that the learned and lamented Judge was not preparing to discuss the general rule, but was about to enter upon the particular one, applicable to (he facts of that case; for he says, the prayer ought to have been refused, if any possible construction of the testimony would support the action. As to the extent of the damages, under the proof, the Bank, if liable at all, were unquestionably so to the full amount of the bill, because Briscoe was shown to be solvent. This case, then, in our opinion, is not a decision upon the point now to be determined.
In Van Wart v. Wooley, 3 B. & C. 439, Lord Tenterden uses an expression similar to that of Judge Marshall, with regard to an agent to whom a bill was remitted for collection, making it his own, by omitting to give his principal notice of its non-acceptance ; but the case itself explains the expression, and is a
Whatever influence the opinion of Judge Marshal], in the case of the Bank of Washington v. Triplett and Neale, may be supposed to have on this question, it must be borne in mind that it was pronounced in January, 1828; but in May, of the same year, we find him giving the question of agency, a full, and we may be permitted to add, a most luminous examination, and he then comes to the conclusion,' that one to whom a bill is remitted, or who is in possession of a note, as agent, does not bear the same relation to. his principal, that the holder of a bill of exchange does to the drawer or indorser; nor will the same negligence, or omission, that will deprive the holder of recourse, against the previous parties to a bill, make the agent •subject to his principal, to the extent of the bill placed in his hands for collection. He also determines, that the relation of principal and agent, is governed by the general rules of law, founded on reason; and if the principal suffers, through the remissness or negligence of the agent, the actual loss sustained by the principal, in consequence of such misconduct, is the standard by which his damages must be measured. Hamilton v. Cunningham, 2 Brock. 350. See also Stow v. Bank of Cape Fear, 3 Dev. 408. It has been supposed by the counsel for the defendant in error, that the principle governing this case, was decided by this Court, in the Branch Bank at Montgomery v. Knox & Co. 1 Ala. Rep. N. S 148, but there the evidence showed, that solvent parties had been discharged, and those who remained liable, were shown to be wholly insolvent.
It must be admitted, that the cases determined in the Supreme Court of Louisiana, are in conflict with what we consider to be the law. They held, that an agent is bound in the same manner, and to the same extent, as if he was a party to the bill or note; and that he is liable for the amount of the .bill or note whenever a solvent party is discharged, although other parties may continue liable who are able to pay. Durnford v. Pattison, 7 Martin, 460; Crawford v. Louisiana State Bank, 1 Martin, N. S. 214, Montillet v.Bank ofthe United States, ib. 365; Pritchard v. Louisiana State Bank, 2 Louisiana Rep. 415, Miranda v. City Bank, 6 ib. 741. But they also held, that the defaulting
It is evident, that gross injustice would frequently be wrought to the agent, if a recovery coiild be had against him by his principal, when there was a solvent party remaining bound, as he has no means by the common law, to compel a cession of the note, and he certainly is invested with no property in it, by the fact, that a recovery is had-against him for a negligent default with regard to it; and although a Court of Equity might interfere for his benefit, that cannot alter the law. In every case of this nature, the law implies some damages from the breach of the contract, whether actual injury has resulted or otherwise; — Van Wart v. Wooley, 3 B. & C. 439. But our conclusion is, that the extent of the injury, and not the amount of the note, is the proper criterion, by which the damages are to be ascertained; and that no actual damages growing out of the loss of the debt can be said to exist, whilst there remains a solvent party,'who is bound for the note. This view of the law imposes on the agent, who. is in default, the.liability of indemnifying his principal, against all the actual losses which have been sustained in consequence of his negligence.
It is pressed on us- with much force, that when the plaintiff has shown the discharge of one of the parties to a note, in consequence of the negligence of the agent, thi's should, prima facie, be considered as evidence, sufficient to charge him with the amount expressed to be due by the note; and the case of Allen v. Sudam, 17 Wend. 368, is relied on to show that a more stringent rule has been settled in New York. In that case, the ‘Court held, that as the jury had no knowledge what the amount •of the damage was, except from the proof of the amount of the ■draft, they ought to find the amount of the draft. It was in evidence, however, that the draft was dated, 21st July, 1833. at two months; it was deposited with the agents on the day of its date, and they forwarded it to the place where it was payable, on the 2d of September; on the 7th, it was presented for
It is supposed, however, by the counsel for the defendant in error, that this feature of the case, was decided by this Court in St. John v. O’Connell, 7 Porter, 466. The proof in that case was, that the debtors were solvent; evidence was offered by the defendant, who had converted the note, that' nulla bona, had been returned to an execution obtained on the paper converted. The Circuit Court charged the jury, that the measure of damages was the amount of the note, and interest to the time of trial; and this Court held the charge to be correct, un~ der the circumstances of the case. There can be no question, we apprehend, of the correctness of this decision, but it has no tendency to support the proposition contended for.
In the case of Stow v. The Bank of Cape Fear, 3 Dev-
If then, the plaintiff is compelled, where there is only one party liable on a bill, in the first instance, and he is discharged by the neglect of the agent, to shew what he has actually lost, we cannot conceive why he is not in the same predicament, where there are more parties than one. If there is yet a solvent party bound to pay, we repeat that the principal cannot be said to have lost his debt through the negligence of the agent, although his remedy, and right also, may be gone, as to other parties. But it is unnecessary for him to ascertain the inability of all, or any of the parties, by suit, if he is prepared to prove, at the trial, either that they are not bound in law, or are unable to pay.
For the errors which we have noticed, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.
I think it probable, that the judgment of, the Circuit Court, may operate injustice to the plaintiff in error, judging alone from the facts recited in the bill of exceptions; but the charge'of the Judge to the jury, seems to me entirely consistent with the view, which my brother, Goldthwaite, has taken of the law. Taken as a whole, I think it easy of application, and consequently cannot admit that it was calculated to mislead a jury of ordinary intelligence. That the Bank was only liable to the extent of the damages sustained by the defendant in consequence of the omission to comply with its engagement, has, I think, been wrel! shown; and so the Circuit Court instructed the jury. No question was raised, whether the mere production of the note and the omission of the Bank to give notice was prima facie, sufficient to charge the Bank with damages equal to its amount and interest; and the failure to charge specially, on this point, does not authorise a reversal ofjthe judgment.
Considering the bill of exceptions not to be obnoxious to the criticism it has received, I cannot acquiesce in the judgment pronounced by the majority.