97 F. 739 | 8th Cir. | 1899
Lead Opinion
after stating the case as above, delivered the opinion of the court.
At the threshold of this case we find some very important facts established by uncontested testimony; among them these: That Mrs. Emmerling made a contract with Booker, as president of the bank, for the bank to take and handle her moneys and securities on certain terms, and that in pursuance of that contract she gave the bank an order on Andrews for the securities, and that the bank obtained the
“This presents the question as to what is a delivery. It is, in its legal acceptation, something more then merely change of-manual capacity or possession. That may or may not be a delivery, according to the intent of the parties. It is a question of intent and purpose; of mutual intent and purpose, implying an acceptance as well as delivery.” King v. Woodbridge, 34 Vt. 565.
This business was done in the bank, with an officer of the bank, concerning securities previously placed in the possession of the bank, and for which Mrs. Emmerling was entitled to a receipt from the bank. The receipt was written in the bank, by an officer of the bank, with whom individually Mrs. Emmerling had never had any business relations whatever. It was written on a gorgeous letter head of the bank, and signed by the president of the bank. Under these circumstances, few business men, to say nothing of an old lady having no knowledge or experience of business, would have thought it necessary to examine the receipt critically, even if it had been shown to them, to see if the president o'f the bank had followed his signature with the title of his office, which appeared at length and conspicuously at the head of the receipt.
It is higMy probable that Mrs. Emmerling’s and Mr. Mager’s version of what was said and doné with reference to this paper is the true one. But, however that may be, upon the evidence the court should have left it to the jury to say whether the bank had delivered the securities to Mrs. Emmerling, and she had accepted them with the mutual intent and purpose on the part of the bank and Mrs.
In the case of Strohn v. Railway Co., 21 Wis. 562, the plaintiff had a verbal agreement with the defendant railway company as to the terms of shipment of a quantity of freight. The freight was delivei*ed to the railway company, and afterwards, upon demand, the company delivered to the plaintiffs bills of lading therefor. These bills of lading contained conditions of shipment inconsistent with the verbal agreement of the parties. The plaintiffs having' received and retained these hills of lading without reading them or knowing their contents, the railway company insisted that they were bound by the conditions contained in the bills of lading, which had been received without objection. In answer to this contention, the court said:
“Of course, possession of the paper by tbe party is evidence, more or less-strong, according to the particular circumstances, of his assent to the conditions contained in it. In most eases it may be absolutely conclusive. If it should appear that he examined it, and knew the contents, and then kept it, instead of returning it or offering to return it to the company, or notifying the company of his dissent, such acquiescence would, no doubt, be construed as conclusive evidence of bis assent. But where the paper is not examined, and the contents not known, I do not think the same circumstances follow. Nor do I think that the. party is bound to examine the paper at once, and know the contents, and return it to the company, or give immediate notice of his dissent, at the peril of being held, concluded on the ground of acqui escence or neglect. Having previously entered into a special verbal agreement, he may rightfully assume, in the absence of notice to that effect, that it is embodied in the paper or receipt, or at least that the receipt contains' nothing contrary to it. It is in the nature of a direct fraud or cheat for the company or its agents, after having entered into a verbal agreement, thus wrongfully to insert a contract of an entirely different character, and present it to the party, without directing his attention expressly to it, and procuring his assent. It is no answer for the company in such a case to say that the other party should have been more diligent and watchful, and should have detected the fraud. So long as he is ignorant of the new conditions, and does not assent to them, the contract in writing is not consummated, and parol evidence may be received.”
And to the same effect is Boorman v. Express Co., 21 Wis. 154. And where the plaintiff took his money to a bank, and handed it to the cashier fox* deposit in the bank, and the cashier gave him a certificate of deposit in the name of a .firm in which the bank officers were largely interested, tbe coui't said:
“When the plaintiff took Ms money to the First National Bank of Allentown. and handed it to the cashier for deposit, the bank became responsible therefor. The cashier was the executive officer of tlio bank, and authorized, by the very nature of his office, to receive money on deposit. After receiving it, no trick or fraud on his part, by means of which the money was passed over to Blumer & Co., a. firm in which the bank officers were largely interested, and appeared to have had the control, could absolve the bank from its liability. No class of men have the confidence of the people to a greater extent*746 than bank officers. Depositors do not deal with them at arm’s length, and can be imposed upon with the greatest ease by such officials. It would be monstrous to allow them to take advantage of the ignorant and unwary by reason of their position and the confidence which it inspires. It was doubtless a misfortune to this bank to have unworthy officials, if such should prove to be the case. It certainly was unwise to permit its chief officers to occupy a dual position, with divided interests; but the consequences resulting therefrom cannot be visited upon those who dealt in good faith with the bank. It was error to reject the evidence contained in plaintiff’s offer. The facts offered to be proved amounted to a fraud upon the plaintiff, and he was entitled to have that question passed upon by a jury.” Ziegler v. Bank, 93 Pa. St. 397.
In a similar case against the same bank tlie court said:
“We must assume that the jury would have found the facts as testified to by the plaintiff Steckel. The facts established, we have a case of palpable fraud. It is not an answer to say the plaintiffs ought not to have been deceived, and, with ordinary care, would not have been. The fact that the Blumers were respectively president and cashier of the national bank, as well as leading members of the banking house of Blumer & Co., was calculated to mislead and deceive; and when told in positive terms that the certificates, although signed by Blumer & Co., were the certificates of the bank, the plaintiffs may readily have believed it was all right. * * * The question of fraud should have been submitted to the jury.” Steckel v. Bank, 93 Pa. St. 383.
And in a case where the cashier of a bank had signed his name to a receipt without the addition of the word “cashier,” and the money was credited to the cashier’s private account, and the bank denied liability, parol evidence was permitted to prove that in fact it was a bank transaction, and the court said:
“A question is made that Pomeroy, by signing his name to the receipt for the $1,300 without the addition of the word ‘cashier,’ implied that it was his individual contract. But, as it was dated at the bank, it was, at most, a case of doubt, upon the face of the receipt, whether it was a private or official act. In such a case parol evidence was admissible to show that it was an official act, though the money was credited on the books of the bank to the cashier’s private accounts. Mechanics’ Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, 5 L. Ed. 100. And it was properly left to the jury to decide, under the circumstances of the case, whether the contract was that of the bank or of the cashier in his individual capacity. The evidence, on the face of it, therefore, predominates in favor of its being a bank transaction.” Caldwell v. Bank, 64 Barb. 350.
Where tke lower court took a case from the jury, saying, “There was very little discrepancy in the testimony,” the supreme court reversed the judgment, and said:
“The judge also tells us that there was very little discrepancy in the testimony; but where there is any discrepancy, however slight, the court must submit the matter to which it relates to the jury, because it is their province to weigh and balance the testimony, and not the court’s.” Barney v. Schmeider, 9 Wall. 248, 19 L. Ed. 648.
In the case at bar a peremptory instruction to the jury to find for the plaintiff would have accorded with the evidence much better than the instruction that was given. But the case should have gone to the jury, whose exclusive province it is to determine controverted questions of fact.
The court erred also in instructing the jury that the plaintiff could not recover because the contract was ultra vires the bank.
“A contract ultra vires being unlawful and void, not because it is in itself immoral, but because tbe corporation, by tbe law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon tbe unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money parted with on the faith of the unlawful contract to be recovered back, or compensation to be made for it.” Central Transp. Co. v. Pullman’s Palace-Car Co., 139 U. S. 24, 60, 11 Sup. Ct. 478, 35 L. Ed. 55.
The judgment of the circuit court is reversed, and the cause remanded, with instructions to grant a new trial.
Concurrence Opinion
I concur in the result in this case, not because Mrs. Emmerling was ignorant of the contents of the receipt which Booker gave her, for I think she was charged under the law with knowledge of its contents (Railway Co. v. Belliwith, 55 U. S. App. 113, 119, 28 C. C. A. 358, 361, 83 Fed. 437, 440; Green v. Railway Co., 35 C. C. A. 68, 70, 92 Fed. 873, 876, and cases there cited), but because, while that receipt is persuasive, it is not conclusive, evidence that a contract with the individual Booker was substituted for tbe original agreement with the bank, in view of the letters which the bank wrote, and the reports and remittances which it made to Mrs. Emmerling after the receipt was given, and in view of the facts that Mrs. Emmerling’s Laidlaw note was renewed in December, 1889, by a note payable to the bank, and this renewal was subsequently indorsed by the bank, and delivered to the plaintiff in error. These acts of the bank subsequent to the delivery of the receipt tend so strongly to show that it was still the depositary of the securities and the trustee of Mrs. Emmerling that the question whether it was or not should have been submitted to the jury.