85 Va. 890 | Va. | 1889
delivered the opinion of the court.
In May, 1885, the appellant company, the First National Bank of Alexandria, filed its bill against the appellees, the assignees of Payne & Co., wherein it is set forth that the said the First National Bank of Alexandria was a banking association located in the city of Alexandria, Va., which, for many years prior to the 9th day of January, 1885, had had for their correspondents a banking firm—Payne & Co.—composed of Charles E. F. Payne and James Keith, their place of business being in Warrenton, in the county of Fauquier, Va., where also were their private residences, and that the said the First National Bank of Alexandria was the correspondent of Payne & Co. in Alexandria. That the relations between the two banking concerns were such as are usual between corresponding banks and bankers keeping running áccounts with each other. Collections in Warrenton for the First National Bank of Alexandria were made by Payne & Co., and collections in Alexandria for Payne & Co. were made by the First National Bank of Alexandria, each placing to the credit or debit of the other the amount respectively collected or paid for such other, and from time to time settling balances as they should be ascertained. That during the day of January 8, 1885, the appellant received from its other correspondents and customers divers checks drawn on Payne & Co., to wit: sixteen checks, amounting in the aggregate to $929.13; also three drafts on Fletcher & Bro., of Warrenton, aggregating $81.03. These several checks and drafts, in anticipation of their payment and collection, were, when received by the appellant, credited to the respective .parties from whom they were received. At the same time, in anticipation likewise of their payment and collection by and through Payne & Co., the
There was no answer, but the facts were agreed, and it was laid before the commissioner in chancery appointed for the purpose as a case agreed that the letter from the First National Bank of Alexandria containing these checks came to hand on the 9th of January, after the dissolution of the firm by the death of Payne; that but one check was paid over the counter of Payne & Co. that day, hut that their usual business with correspondents was transacted that day ; that at 3:15 P. M., James Keith, the surviving partner, wired the Alexandria Bank as follows: “Owing to the death of Charles Payne, the banking-house of Payne & Co. has closed its doors, and goes at once into liquidation.—James Keith.” At 4:05 P. M. of the same day the following telegram was received by Keith: “If we send letter to-day, will it have attention as usual ? Can you remit balance ? Shall I come up in the morning ?—O. B. Hooff, cashier.” At 5:25 P. M. it was answered as follows: “Do not send letter. Will remit balance to-morrow.—Payne & Co.” At 10 A. M. of the 10th, the foregoing was followed by this: “ Are unable to remit balance, as promised yesterday.—James Keith, Surviving Partner.” The Alexandria bank responded on the 12th of Jan
The controversy in this case is within a very narrow compass. It is mutually conceded that the death of any one member of a firm operates as a dissolution thereof as between all the members, and that on such dissolution the survivor has the right to take possession of the co-partnership assets and settle up the
The partnership of Payne & Go. was dissolved and ceased to exist as such before hanking hours on the 9th of January. The “ day,” in hanking parlance, means simply the few hours set apart by usage as hanking hours. Banking hours are so far recognized by the courts that any transaction in the ordinary course of banking business, which is to he had with the hank on any day, must be had within banking hours upon that day. The firm of Payne & Go., then, did not exist on the 9th of January ; it was dissolved before hanking hours. It is admitted that the letter of the appellant hank did not reach its destina
Having passed, then, actually, but unlawfully, and without any authority, express or implied, from the real owners into the hands of appellee trustees, can it be reclaimed ? It appears to be easily and clearly traceable upon the books of the late concern, placed there after there was no such firm; no checks have been drawn against it; it has remained unchanged in any respect, and there is no difficulty in tracing and identifying it. It does not belong to the assignees, because it did not belong to the firm. It was not in the power of the surviving partner to convey it. It did not pass by the deed, and the assignees have no right to it whatever, but, actually holding it, they cannot use it for the purposes of the firm, but ought, in justice, to return it to the owner, the First National Bank of Alexandria. It is claimed by them that placing it in the mail commenced a transaction with the firm of Payne & Co., which the surviving partner had a right to perfect, because already begun, and this is what the commissioner reports; but in no sense is this so. The transaction could not begin with them so as to charge them in any way, unless the remittance was received. What responsibility was there, or could there be, if they never received it ? If lost in the mail or recalled, or if by any means it never reached them, can it be contended that they could be held responsible ? This is what did occur. It never did reach them. The firm did not receive it but some other person. That other person cannot deliver it to the dissolved firm; it is incapable of taking. His plain obligation is, as we have said, to return it to the owners, or dispose of it as they direct. But it is insisted that the apellani ratified what was done. There is no ratification in the case. There was not only no ratification, after full information, but a positive renunciation of the unauthorized act. To the telegram of Judge Keith on the 9th: “ JDo not send letter; will remit balance to-morrow,”—there was no reply; but when,
Decree reversed.