12 Conn. 303 | Conn. | 1837
No exception has been taken to the instruction to the jury, that money paid by mistake, and under a misapprehension of facts, and where no laches are imputable to the plaintiff, (in respect to his omission to use the means of knowledge within his power) and when in equity and good conscience the defendant cannot retain it, can be recovered back. Milnes v. Duncan, 6 B. & C. 671. Indeed, the principle involved in this instruction, has become almost an axiom in the law ; and is as just in itself, as it is fully supported by authority: Nor does any just exception exist to the charge, that the plaintiffs were bound to exercise due and ordinary care and diligence, as agents, in collecting the bill in
The defendant insists, that the plaintiffs were guilty of negligence,in several particulars.
1. In not indorsing the bill, previous to forwarding it to the Merchants’ Exchange Bank ; or, at least, in not informing the latter bank, of the places of residence of the indorsers. We believe it is a general practice of the banks in this state; when they transmit bills or notes for collection, to indorse them, by their cashier ; but we are ignorant of any rule of law which requires it. The only benefit resulting from such a practice, is, that the note or bill, when so indorsed, will itself show from whom it was received, by the collecting bank. This, however, would seem to be of no importance to those interested in the bill; for it is to be presumed, the bank employed to make the collection, will preserve the letter of advice accompanying the bill, or cause such entries to be made in their books, as will show from whom it was received. This would be done, as well for their own security, as on account of the courtesy due their correspondents. In the present case, the bill was forwarded, by the plaintiffs, in a letter dated “ East-Haddam Bank, July 12th, 1832,” and signed by the cashier; and when received, there was noted on it, “ for the Easl-Haddani Bank.” None of the parties to this bill were injured, or could have sustained any loss, by reason of the omission, on the part of the plaintiffs, to indorse the bilk The law does not impose the duty of indorsing a bill, on the bank who receives.it merely to be transmitted for collection. Such a duty might become extremely onerous; for if their indorsement was in blank, they might be subjected, at the suit of a bona fide holder, for value, who should become possessed of the bill, before it came to maturity. Nor does the law require the bank who forwarded the bill for .collection, to communicate the places of residence of the indorsers. Such information is necessary only to enable the collecting bank to give due and reasonable notice to the parties, of the dishonour of the bill, if not paid according to its tenour; and this object can be as effectually attained, without information of the places of residence of the indorsers, as
The motion states, that, in the case before us, the bill was sent, by the plaintiffs, to their correspondents, who knew from whom they received it, and who had the necessary information to enable them to transmit, through the plaintiffs, the proper notices to all the parties to the bill, if they were required at all. The plaintiffs, who received the bill for collection merely, transmitted it, in due time, to their only correspondent in the place where it was payable — a bank in good credit, and on whose fidelity reasonable confidence was reposed — accompanied with information of every fact necessary to secure the rights of the defendant. No negligence was imputable to them. Up to the period when the bill came to maturity, the plaintiffs had discharged all the obligations which they had contracted to the defendant, by the receipt of the bill for collection. Have they omitted to perform any duties imposed upon them, at a subsequent period ? Or have they so conducted as that the defendant can justly, and in good conscience, retain the money sought to be recovered of him, in this action ?
2. It is claimed, by the defendant, that the Merchants’ Exchange Ba?ik were the agents of the plaintiffs, in the collection of the bill, and not the agents of the defendant; that the plaintiffs are responsible for the default of the collecting bank, who, it is insisted, were bound to give notice to the indorsers, of the dishonour of the bill, either directly, or indirectly through the plaintiffs: and having failed to do so, the defendant can equitably retain the money which has been paid to him.
3. It is further urged by the defendant, that the plaintiffs were guilty of negligence in not obtaining earlier information of the dishonour of the bill, and communicating it to the defendant ; at least, that they were in default in notifying him that it was collected and the proceeds were at his disposal: that in consequence of these acts and omissions, and the payment of the money to him, he was “thrown entirely off his guard,” and prevented from taking any measures to obtain payment or security from the previous parties to the bill; and therefore, the plaintiffs have made the bill their own; and in equity, the defendant ought to retain the money. To this claim it would be sufficient to reply, that the jury have found, that the defendant has not been prevented from collecting or recovering the amount of the bill, by reason of any default or negligence on the part of the plaintiffs. If he has lost nothing in consequence of the acts or omissions of the plaintiffs, it is not easy to discover the equity of his claim to appropriate the plaintiffs’ money to his own use. If his supposed right to retain it, is founded upon a presumed loss arising from the misconduct of the plaintiffs, all pretence of such right is removed, when it is found no such loss has in fact been sustained. Independent, however, of the finding of the jury on this point, we think the position taken by the defendant’s counsel cannot be maintained. The plaintiffs were perfectly justified in paying the money, under the circumstances disclosed in the motion. According to their usage, (which is similar to that which prevails among
It appears, then, that the plaintiffs waited a reasonable time after the bill came to maturity, before they paid the avails to the defendant: that within a short time afterwards, and as soon as they were put upon enquiry as to the fact regarding the non
The view which has been taken of the case, renders it unnecessary to express an opinion upon the question of waiver, which has been argued before us ; and we wish to be understood as not intimating any opinion as to that part of the instruction, which has reference to that subject. Whether an absolute promise to pay a dishonoured bill, is indispensable to constitute a waiver of legal notice, we do not decide. A correct decision of the case before us, does not require it. We leave that point open for examination, whenever it may become necessary to consider it.
The motion for a new trial must be denied.
New trial not to be granted.