55 Wis. 364 | Wis. | 1882
The facts in this case on which the question of law arises are these: The plaintiff had on deposit to his credit in the savings department of the defendant bank the sum of $954. Being at Wiesbaden, in Germany, he addressed a letter to the cashier of the bank, with this request: “ To remit to me the sum which may be due me upon my bankbook by draft, or in such manner as you think is best, so that I can draw the money at Frankfort-on-the-Main.” Pursuant to this request the defendant drew its bill of exchange on a bank at Frankfort for the amount, ¡payable at sight to the order of the plaintiff, inclosed the same in a sealed envelope addressed to Mr. PhiUiyp Jwng, Wiesbaden, Germany, Europe, and transmitted the same by mail in the usual course of business. In due time the drawee in said bill returned the same to the defendant, indorsed “ paid.” In point of fact, however, the bill never came to the hands or possession of the plaintiff, but was delivered by the officials of the postal department at Wiesbaden to another person of the name of
Under these circumstances, is the defendant bank bound to make good the loss, the money having been paid by the drawee to the wrong person? We fail to perceive upon what principle of law it can be held liable. The learned, circuit court decided that the bill of exchange was issued and transmitted, in conformity to the written directions of the plaintiff, in the usual and ordinary course of business, and that in so transmitting the same the defendant used ordinary care and diligence to the end it might reach the plaintiff. It seems to us this view of both the law and facts of the case is indubitably correct. The money was remitted to the plaintiff in strict conformity to his express written direction. It was remitted ■“ by draft ” on a Frankfort bank, as he requested, in the usual way, by mail. If a loss has happened it is certainly not through the fault of the defendant; for certainly the plaintiff’s letter to the cashier clearly authorized or justified the bank in remitting the money as it did, if language means anything. The plaintiff saw fit to take the risk of this mode of transmission. When the draft was properly mailed and addressed to him at Wiesbaden it became his property, and the defendant discharged its obligation to him. It cannot be held liable to pay the money again because the draft came to the possession of the wrong party. It is true, the plaintiff directed the cashier to remit “by draft or m moh, mcmner as you think is best, so that I can draw the money at ” Frankfort. But in this he clearly indicated one mode of transmission, namely, by draft. This mode the bank adopted. If the bank had selected some other usual and proper- way of transmitting the money, as by letter of credit, it would doubtless have been within the direction given. But it did not see fit to exercise any discretion in the premises, but remitted the money by draft, as the
But the learned counsel for the plaintiff insisted that the officers of the bank were guilty of negligence because they ■did not in some way more clearly designate the person for whom the letter was intended. It is said they should have ■addressed it to Phillip Jung, of Milwaukee, Wisconsin, or should have adopted some other address which would have secured its right delivery. It is sufficient to say, in answer to this argument, that the plaintiff did not direct the bank to Use any such designation or mode of address in sending the draft to him. The defendant was surely authorized to ;adopt the address contained in the letter sent to it. It is further said the evidence shows that Wiesbaden was a large ■city which is resorted to during the summer season by thousands for the purpose of bathing; that there might have been a dozen persons by the name of Phillip Jung in the •city at the time, to whom the draft was liable to be delivered. Assuming this to be so, and that the officers of the bank had knowledge of these facts, still, did the rule of diligence require them to do more than adopt the address furnished in the letter itself? It seems to us not. It was the duty of the plaintiff, under the circumstances, to take precaution that the letter should not be delivered by the post-office officials to the wrong person. The same counsel further relied upon the rule that where payment is made by remittance by mail to the creditor the transmission is ordinarily at the risk of the debtor. This is doubtless so in the absence of an express direction of the creditor to remit in that way, ■or where there is no usage or course of dealing from which the authority of, the creditor to so remit may be inferred. Burr v. Sickles, 17 Ark., 428, and authorities cited in the •opinion. Here there was express authority to remit by draft in the usual way. Besides, it must be observed that by the ■rules of the defendant the money was payable at its counter,
By ike Oowrt.— The judgment of the circuit court is affirmed.
