Louisville & Nashville Railroad v. Johnson

| Ala. | Nov 15, 1900

SHARPE, J.

This suit depends on facts which are undisputed. The plaintiff for the purpose of settling a debt it owed to the Converse Bridge Company, prepared a statement of the claim in the form of an approved account having thereon a form of receipt in blank together with a statement that “This voucher when properly signed becomes a draft without exchange on the Treasurer of the. Louisville & Nashville Railroad at Louisville, Kentucky.” This paper the plaintiff directed through the mail to the .Bridge Company, and it came to the hand of one Watson who had been in the Bridge Company’s employ. Watson pretending to have authority to represent the Bridge Company, but lacking such authority, wrote at the end of the receipt “Converse Bridge 'Co. by J. Watson,” and handed the paper to the .cashier of defendant’s bank, who, acting for the defendant, paid Watson the amount of the claim. The cashier wrote his name as a witness to the signature written by Watson on the receipt, indorsed the paper in the name of the Planters Bank under which name the defendant conducted a private banking business, and sent it to the Citizens National Bank of Pensacola, Florida, wherein the amount of the claim was placed to defendant’s credit. The Pensacola hank indorsed the paper, and sent it to the Louisville Banking Company to which the plaintiff by its treasurer paid the amount of the claim' on presentation of the paper. Before paying, the plaintiff had no knowledge of Watson’s lack of authority to sign the receipt, and it is not shown that the defendant had such knowledge before this suit was brought.

To establish a right of action in assumpsit the plaintiff was under the necessity of proving that there existed between itself and the defendant some privity of contract created by express promise or by implication of law. The authorities cited in briefs bearing on rights and liabilities of parties, to commercial paper are without application. The voucher in question was not a draft in the sense that the term draft is used in the commercial law: It amounted to no more than the plaintiff’s written admission of a debt with a direction to its treasurer to pay it after the receipt was signed. Lacking the requisites of commercial paper as to parties and otherwise it was not within the power, even if it was the intention of the plaintiff, to put the writing in circulation as commercial paper by stipulating that it should become a draft when signed. No fraud being imputed to the defendant, his indorsement of the paper has effect only to evidence the assertion on his part of a right to transfer or collect the claim, together _with the fact of transfer. Whether in collecting from the' plaintiff the Louisville Banking' Company was acting for itself' as the supposed transferee of the claim or for the Pensacola bank is not clearly shown, but • there is no evidence from which it can be infemed that it was acting for or on behalf of the'defendant-or that the plaintiff’s money was paid, received or used for the defendant’s' benefit. The contrary inference would seem to arise from the fact that the Pensacola bank gave the credit to defendant on receiving the claim which fact being unexplained may only indicate that as between the bank and defendant a sale and transfer of the claim was intended.

If the defendant is liable upon the theory that he sold property to which he had no’ title, the liability exists in favor of his vendee who may be the Pensacola bank. The plaintiff is not privy to that transaction and its recourse if any would seem to be upon the party who •collected from if without authority.

There béing no phase of the evidence under which the plaintiff could have recovered, defendant was entitled to the charge given in his favor, and the rulings on evidence even if they resulted in the admission of immaterial evidence were not injurious to the plaintiff and are, therefore, not ground .for reversal. — Hill v. McBryde, 28 So. Rep. 85; Glass v. Mayer, 26 So. Rep. 890.

Let the judgment be affirmed.