104 F. 187 | 8th Cir. | 1900
The case presented for decision is as follows: George W. Wilder, the defendant in error, on November 19, 1898, brought an action against the First National Bank of Denver, the plaintiff in error, to recover the amount due to him on two certificates of deposit (one for $500, and the other for $3,000) which were issued to him as payee, by the bank, on or about December 1, 1897. Each of the certificates, by its terms, was “payable in current funds to the order of self [that is, the payee, George W. Wilder] on the return of this certificate properly indorsed.” The plaintiff alleged that he had never indorsed or transferred the certificates to any one; that on or about March 4,1898, he had lost them by their being taken from his possession without his consent; that he had immediately informed the bank of the loss, and subsequently, in September, 1898, had demanded payment of the certificates, which was refused. The bank admitted the issuance of the certificates and their nonpayment, giving as an excuse for its refusal to pay them when payment was demanded that the certificates were not at the time produced by the payee, that he made no tender of indemnity on the occasion of the demand for payment or subsequently, and that it had no sufficient information on which to base a belief whether the certificates were lost or stolen, as the plaintiff alleged, or whether, if lost or stolen, they were at the time unindorsed by the payee.
Concerning the testimony adduced at the trial, which was before a jury, it will be sufficient for present purposes to say that the plaintiff testified, in substance, that on January 5, 1898, he went from Tacoma, Wash., to Skagway, in Alaska, landing there on the 10th of January, 1898; that he carried the certificates in a belt which he wore about his body; that he took up his abode at Kkagway in a' small hotel; that on the night of March 3, 1898, he took off his belt, which contained the certificates, some gold, and a diamond, and laid the same on one side of his bed, and went to sleep; that, when he dressed the next morning, through oversight he failed to put on his belt, and left it in his room, where he had placed it when he retired; that he did not return to his room until 10 o’clock p. m. of that day, and never missed his belt until his return; that on his return, when he undressed
The negotiability of the certificares when they were executed and delivered by the defendant hank is not challenged by either party, and we shall accordingly assume that they were negotiable, though “payable in current funds,” and that they were subject to all the rules applicable to notes and hills drawn in such form as to he negotiable by ¡he law merchant. Neither was the question raised in the lower court, nor argued in this court, whether the remedy to recover the contents of a lost negotiable instrument, such as a note, bill, or bond, is exclusively in equity, or may be pursued at law'. On behalf of the bank it is conceded, apparently, that by the modern practice a suit at law' may he maintained on a lost negotiable instrument, and that courts of law' in such cases have power to require a proper indemnity against the reappearance of the lost instrument; while on the part
We are aware of no sufficient reason why a court, especially if it is one which is vested with jurisdiction both at law and in equity, may not require a bond of indemnity as a condition precedent to a recovery in a suit at law brought therein upon a lost negotiable instrument. Whether such an action be brought on the law or equity side, the court has the same opportunity to determine accurately whether, in view of all the circumstances attending the loss, the case is one in which the defendant would be subjected to a risk of loss or expense if compelled to pay the lost instrument, and the same opportunity to determine the amount of indemnity, if any, which should be exacted. In these days courts of law manifest a strong disposition to administer the law in accordance with those principles of justice which are recognized by courts of equity, and instances are not wanting where they have entertained defenses and enforced obligations, without express statutory authority, which at one time would have been entertained and enforced only by courts of equity. No substantial objection to such action is perceived, when a court possessed of legal and equitable powers can conveniently give effect in a legal proceeding to a well-established equitable right without harm to either party. Some courts of high reputation have heretofore entertained actions at law upon lost negotiable instruments, and have exercised the power of requiring the plaintiff to give a bond of indemnity as a condition precedent to a recovery, and some of them have maintained their right to exercise this power by reasoning that is very persuasive. Fales v. Russell, 16 Pick. 315; McGregory v. McGregory, 107 Mass. 543, 546; Bridgeford v. Manufacturing Co., 34 Conn. 546; Fisher v. Webb, 84 N. C. 44; Bank v. Benedict, 18 B. Mon. 307, 311; Robinson v. Bank, 18 Ga. 65, 110, 111. Conceding, then, that the practice of requiring indemnity in suits upon lost.negotiable instruments originated with courts of chancery, which were the first to recognize a right of recovery on lost instruments, no substantial reason can be assigned at present why a court of law should not adopt the practice, and exact, indemnity under the same circumstances where a court of equity would exáct it.
Passing to a consideration of the principal question discussed in the briefs and at the bar, namely, whether, in view of all the facts disclosed by the record, the case is one in which the plaintiff should have been required to furnish indemnity, we observe in the first instance that, according to the plaintiff’s own showing, the certificates in suit were not overdue at the time of the alleged loss, but were capable of negotiation to a bona fide holder. In the second place, the finding by the jury that the certificates were lost and never negoti