32 Ill. 295 | Ill. | 1863
delivered the opinion of the Court:
It is insisted that the finding of the jury is clearly against the weight of the evidence, and that the court below erred in not granting a new trial. The witness Bay testified, that appellants, when first applied to, positively refused to undertake the collection of the draft. That when they were applied to a second time for the same purpose, they only agreed to send the draft forward, upon the condition that they were to incur no liability. That it was agreed it should be sent to Burch & Co., for presentation, and when paid, to be sent to appellants by express.' That the draft was thus sent with these instructions. This evidence stands uncontradicted by any other testimony in the record. It was, however, attempted to destroy its force, by proving the usual course of business of this and other banks in Ottawa. And much stress was placed upon the fact, that when collected, Burch & Co., placed the money to the credit of appellants.
If a special agreement was entered into at the time, the usage of this or other banking houses could not, in the least, affect the liability of appellants. Proof of usage can only be received to show the intention or understanding of the parties in the absence of a special agreement. The parties have the right to stipulate against the ordinary liabilities of the business, and appellants did clearly provide by express agreement against any supposed liability growing out of their undertaking. When the draft was sent forward by appellants to Burch & Co., in accordance with the agreement, they became the agents of appellee for the collection of the money. We are unable to see anything in the evidence that overcomes Fay’s testimony.
It appears from appellants’ letter remitting the draft to Burch & Co., that they gave directions to collect, and at once to s,end the money by express, as it had been agreed between appellants and appellee.
The clerk of Burch & Co. testified that when the money was collected, it was, by mistake, passed to the credit of appellants, and against their instructions. Hothing can be inferred against appellants, from this act, done without their sanction or consent. And it will be remembered it was not by their agents, but those of the appellee.
It is also urged that appellants were guilty of negligence, in-sending the draft to an irresponsible banking house, for collection. The evidence shows that in Chicago, where Burch & Co. did business, their character for solvency was good. It, however, appears that Warner had suspicions of their solvency, and communicated them to appellants; but he states no facts, except that he had heard persons predict that Corning would break Burch in their litigation. It also appears that some depositors withdrew their funds, previous to that time, from Burch & Co.’s banking house. But it does not appear that appellants were aware of the fact, nor that the withdrawal was occasioned by want of confidence in the solvency of Burch & Co. The appellants transacted their business through this banking house, and seem to have had confidence in its solvency. This evidence is not sufficient to establish the liability of the appellants.
It was, lastly, urged that appellants were guilty of negligence, in taking no steps to correct the mistake in passing the money to their credit. It does not appear that they had any notice of the mistake until they heard of the failure. But it is insisted that when the money failed to come by express, they should have written to have learned the reason,' and that had they done so, the money might have been saved. The draft was received by Burch & Co. on the 30th of Hay, and it was paid on the next day. On the 3d of June, three days afterwards, Burch & Oo. failed, and made an assignment. There was, then, but two days between the collection and the failure, within which to receive the money. Suppose appellants had become apprehensive that something "was wrong, by failing to receive the money by express, on the first of June, and had written on the second, does any one suppose the money could have been thus obtained, or information, that would have led to its receipt ? . It will hardly be contended that because the money was not received on the first of June, appellants should have gone in person, or sent a messenger the next day; and even if they had, it is not probable anything could have been obtained.
We think the verdict is clearly against the evidence, and that the court below erred in refusing to set it aside. The judgment is therefore reversed, and the cause remanded.
Judgment reversed.
Hr. Chief Justice Catow concurred.
Hr. Justice Bbeese dissented.