56 Mo. 94 | Mo. | 1874
delivered the opinion of the court.
The defendant in this case was a banking corporation authorized and created by the laws of this State, and as such was engaged in receiving deposits of money and securities, buying and selling exchange, and collecting drafts, bills and notes.
The petition alleges that the plaintiff, on the-19th day of October, 1867, was the owner of five different drafts drawn on different persons and firms in the States of Arkansas and Mississippi, for sums amounting to about $150 each, (each of which was particularly described in the petition),and all of which were drawn by P. Flanigan & Co., payable to their own order and by them indorsed.
The petition also charges that, on said 19th day of October, 1867, plaintiff deposited said drafts with the defendants for collection, and that defendant agreed and undertook to collect at the current rate of exchange; that the aggregate amount of said drafts was seven hundred and thirty-two dollars and nineteen cents; that the defendant refused to account to plaintiffs for the drafts, although a 2-easonable ti2ne had elapsed since their delivery to defendant for collection or return, and that defendant had refused to pay plaintiff the amount of said drafts or to return the same ; that defendant has collected the amount of the drafts and has thereby become liable to pay the amount thereof to plaintiff, for which judgment is prayed.
The defendant in its answer denies that it agreed to collect the drafts named in the petition, or that it refused to account to plaintiff therefor, or that it has ever refused to return the same, or that it has ever collected the amount thereof. But the defendant states that said drafts were deposited with it with the understanding that defendant would send them to Yicksburg for collection; that pursuant to said agreement defendant did send the drafts to the Yicksburg National Bank, at Yicksburg, Mississippi, for collection; that said bank has not as yet collected the same or accounted to defendant therefor. The case was tried before the court, a jury having been waived.
Upon this admitted state of facts the Circuit Court, at special term, found for the defendant and rendered a judgment in its favor. The plaintiff then filed a motion for a newtrial on the ground that the judgment was not sustained by the law growing out of the facts in the case. This motion being overruled by the court, the plaintiff excepted and appealed to the general term of said court, where the judgment rendered at special term was affirmed, from which last judgment plaintiff appealed to this court.
The question is, is the defendant liable for the amount of these drafts in this action, or, in other words, was the Yicksburg bauk the agent of the plaintiff for the collection of these drafts, or was it the agent of the defendant? This has for a long time been a vexed question in the commercial world, the decisions on the subject being conflicting both in England and in this country. In the State of New York, although the decisions on the subject have not always been entirely consistent, it is now well settled that, where a bank in that State receives for collection a draft payable in another State, and forwards the draft to a correspondent in the place where the draft .is payable, the bauk receiving the draft for collection is responsible to the owner; that such correspondent is the agent of the bank transmitting the draft, and not the sub-agent of
The case of Taber vs. Perrot, (2d Gallison, 565,) relied on by the plaintiff in this case, I think is distinguishable from the cases before cited. In that case the money had been collected by the correspondent to whom the bill or draft had been sent, and had been paid out to the order of the party who had transmitted the bill or draft without notice of the interest of the real owner. In such case there can be no doubt but the party who transmitted the bill and converted the funds, and not the correspondent who collected the money, would be liable to the real owner.
In the States of Massachusetts, Pennsylvania, Connecticut, Illinois, and in several other States, the decisions are in direct conflict with those in New York and Ohio before referred to. In the case of Bellemire vs. Rank of United States, (4 Wharton, 105), it was held that the bank should be regarded as having undertaken to collect the note in the customary mode, and the holder of the note must be understood to have consented to the arrangement; consequently on default of payment by the maker, it became the duty of the bank to call to its aid the notary and intrust him with the performance of that which was necessary to secure the responsibility of the indorsers ; that the notary being a public officer, he and his sureties on his official bond were liable to the parties injured by his neglect or misconduct, and not the bank or person who directly employed him.
In the case of the Dorchester and Milton Bank vs. The New England Bank, (1 Cushing, 177,) it was held that a ^bank by which notes and bills payable at a distant place are received for collection,without specific instructions, is bound to transmit', or cause them to be transmitted, by suitable sub-agents, to some suitable bank or other agent at the place of payment for the
In the case of the Ætna Insurance Company vs. The Alton City Bank, (25 Ill. 243,) which was a case involving the question in the present case, the learned judge delivering the opinion of the court uses this language: “Where abankreceives a bill or note for collection against a drawee or maker resident at the place of the bank, or where the bank undertakes for its collection by their own officers, there can be no doubt that it
“In this case it appears the defendant received the bill in controversy for transmission for collection, and in due season forwarded it to their correspondent at the residence of the drawees; that they were competent and reliable, and that defendants in no way contributed to any loss that may have occurred. If then any liability has been incurred to the plaintiff, it is by the St. Louis house, who became their agents, and not by the defendants.”
The direct point involved in this case has never, so far as I know, been before this court. In the case of James H. Millikin vs. August E. Shapleigh, (36 Mo., 596,) the plaintiff, the holder of two drafts, deposited them with a bank in Baltimore “ for collection ;” the bank in Baltimore indorsed the drafts and 'sent them to a bank or association in St. Louis for collection as their agents. The indorsements were expressed to be “ for collection;” but the association in St. Louis had no actual knowledge at the time the drafts were received that the plaintiffs were the owners of the drafts. The drafts were paid, when due, to the association in St. Louis, and the St. Louis house having an unpaid account against the bank at Baltimore, who had then become insolvent, credited the proceeds of the drafts to their account against the Baltimore bankj with which it had had previous dealings. The plaintiffs after this notified the association at St. Louis that they were the owners of the drafts and their proceeds. The plaintiffs demanded the proceeds of the drafts,which were not paid, and the suit was brought for their recovery. The court held that the plaintiffs could recover notwithstanding the drafts were
The case of Gerhardt vs. Boatmen’s Savings Institution, decided by this court (38 Mo., 60) is relied on by the plaintiff as authority in this case. In that case the plaintiff kept a regular deposit account with defendant, and in accordance with the uniform custom delivered to it a negotiable promissory note for collection. The payer of the note and the defendant both were in St. Louis; the plaintiff indorsed the note and delivered it to defendant for the purpose aforesaid. The note was not paid at maturity, and was delivered by the defendant to a notary public for protest, and to give notice of presentment and refusal to pay to the indorser. The notary was appointed by the defendant to do all of its notarial business, and had given defendant a bond in the sum of ten thousand dollars for the faithful discharge of his duties; and, in fact, the notary was in one sense, an officer of the bank. By his negligence, the plaintiff lost all remedy against the indorser of the note, and the maker was- insolvent. The court held that the plaintiff could recover. The conflicting, authorities were examined in the opinion delivered in 'the case, but the decision was placed on the express ground that the notary, through whose fault the plaintiff sustained the injury, was the agent and officer of the defendant, and was acting in the course of his employment. The learned judge delivering the opinion of the court, used this language: “ The defendant having appointed the notary by the year, and required a bond for the faithful performance of his duties, made him its agent and an officer of the bank. Upon recognized
The judgment of the Circuit Court will be affirmed.