Farmers & Mechanics Bank v. Third National Bank, Appeal, No. 152

Appeal, No. 152 | Pa. | Jan 7, 1895

Opinion by

Mjr. Justice Fell,

On May 23d, 1884, the plaintiff received from one of its depositors a check on the Penn Bank, and on the same day delivered it to defendant for collection through the clearing house. The Penn Bank had suspended payment, and was closed at the time of the receipt of the check by the defendant, but was open for an hour on the afternoon of May 23d, which was Friday. It was open on Saturday the 24th, and a part of Monday the 26th. Checks on it were paid through the clearing house on Saturday, but not on Monday. The cheek in question was not sent to the clearing house on Saturday, as the Penn Bank had for some days been closed, and when it was sent on Monday it was returned dishonored. On the 27th the assistant cashier of the defendant returned the check with others to the assistant cashier of the plaintiff and explained to him that the officers of the Third National Bank had no knowledge that the Penn Bank cleared on Saturday, and that as it was the clearing house agent only the check was not presented at the bank. After this explanation and a full statement of all that had been done the check was handed back and the plaintiff’s check was received in adjustment of the accounts between the parties.

The business between the banks continued as before from this date, May 27th, 1884, until Feb. 28th, 1888. During this time the defendant continued to act as the clearing house agent of the plaintiff, and a pass book was kept in which this and all other transactions were entered. This book was balanced monthly until it was finally closed, Feb. 28th, 1888, at which time a full and final settlement was made between the banks. In 1884 suit was brought against the plaintiff by the depositor of the check for negligence in failing to collect it of the Penn Bank, and judgment obtained against it in 1885, which was paid. Oct. 15th, 1888, the plaintiff suspended payment and made an assignment for the benefit of creditors. On May 20th, 1890, this suit was brought by the assignees.

The rules of court provide that “ such items of claim and material averments of fact as are not directly and specifically traversed and denied by the answer shall be taken as admitted.” The statement and the affidavit of defence are therefore to be taken in connection with the facts established by the testimony. The affidavit contains no specific denial of the averment that the defendant had an opportunity to collect the check on the 23d, the 24th and the 26th, but did not present it, and negligently failed to collect it. The statement charges the defendant with no duty but that of a clearing house agent, and avers no breach of that duty, but only that the check ought to have been collected by presentation at the counter of the Penn Bank. Prima'facie no such duty was imposed by the agency, and there is nothing in the statement to show that there was anything in the facts and circumstances to give rise to it. The agency set out was to collect through the clearing house, and no negligence in that regard is alleged. The only opportunity to collect through the clearing house was on Saturday morning. The Penn Bank was closed on Friday, and the clearings were made on Saturday before it opened. Without knowledge or the means of knowledge that the bank would resume payment on Saturday there was no duty on the defendant to send checks on it to the clearing house. The circumstances may have given rise to such a duty, and possibly to the duty of presentation at the bank, but they do not appear in the pleadings. The inquiry as to negligence was therefore not closed by admission for want of denial in the affidavit, but was open and for the jury.

The settlement of accounts, including the check in question, was made by the assistant cashier of the defendant in accordance with the practice and course of business between the banks. His authority to bind the plaintiff, if not inherent, might well be presumed from his position and the nature of the act, or become defined as to the defendant by its habitual exercise with knowledge and acquiescence. This settlement was made after a disclosure of all that had been done in relation to the check. It 'was entered on the pass book of the plaintiff, and the business relation continued as before without interruption for nearly four years, when a full settlement of all their business was had. ■ No objection was made at any time, although suit was brought against the plaintiff and recovery had for its neglect in relation to the check. This action was instituted by the assignees for the benefit of creditors within seven days of the period of the bar of the statute of limitations.

The defendant was entitled to go to the jury on the question of the authority of the assistant cashier and the subsequent ratification of his acts, and of the binding effect of a settlement made and acquiesced in for such a length of time.

The assignment of error is sustained and the judgment reversed with a venire facias de novo.