Maloney v. Clark & Co.
6 Kan. 82
Kan.
1870
Check Treatment

The opinion of the court was delivered by

Safford, J.:

The issues in this case were tried by the, district court, upon an agreed statement of facts, and a judgment rendered for the defendants here and below. It is claimed for the plaintiff in error, that such judgment was erroneous, for the reason that it is not sustained by the facts so agreed upon by the parties, and is *86contrary to the law which is applicable thereto. An examination of the whole case, as presented by the record, has led this court h> a different conclusion, and such as will require an affirmance of the' decision made.

i. aoescy. Eflets in c“sé of" mutual misIt appears that James Maloney was induced to send drafts to the amount of five hundred dollars, to A. F. Callahan, for the benefit of a person who had no claims whatever upon him, and under the belief that such person was his brother Daniel Maloney, when in fact his said brother was entirely ignorant of the whole transaction. But it is equally clear that these defendants were in nowise connected with or responsible for this mistake on the part of James Maloney. The real Daniel Maloney was unknown to A. F. Callahan, and to the defendants; while the person who received the money was known to Callahan by that name, and under that name employed Callahan to write for and procure the money to be sent to himself. Callahan acting in entire good faith, wrote for the money, as requested thereto by his employer, and in due time it was received by him, and in response to his application, on behalf of such employer. Having so received the money, he delivered it, or rather the draftb representing it, to the man claiming to be Daniel Maloney, and known to him by that name. Such drafts were then purchased by these defendants in due course of their business, as bankers, aud upon identification of the person to whose order they were made payable, to-wit, “Daniel Maloney,” by said A. F. Callahan, who was well known to them. Under the circumstances Callahan could not have done otherwise than he did; and further than this, he was authorized thereto by the sender of the drafts. For the pur- ° x pose of such delivery to the person for whom *87he had procured them to he sent to him, Callahan was the agent of James Maloney; and a delivery by him was with like effect as it would have been had James Maloney himself been present.

2. Mistake of fact, íhonIy,'loSñot change, liability, __and u is purobMe'dmus in due course of business. It certainly seems to us that the action of Clark & Co., in the premises, was characterized by all necessary caution and prudence;. and least of all does the x , slightest negligence on their part eeem to intervened. The whole transaction, so far as the knowledge of Callahan, and Clark & Co., and their connection therewith, is concerned, was one of the simplest and most common; and they all did what every business man in a like situation would have been sure to do. It is true they were to a certain extent imposed upon, being deceived as to the per-,n it i, i son with whom they were dealing; but not through any fault or negligence of their own — but rather through the mistake of James Maloney, brought about by the dishonesty of the party claiming to be his brother.

4. Right to recovfi‘. certain caUs.’ It is to be remarked in this connection, that this transaction is in no way similar to one where a draft, either by theft or by accident, falls into the hands of a person not entitled thereto, for which the party sending such draft is not responsible. In such a case the injured party, being in'no fault himself, might be entitled to relief as against a purchaser of the stolen draft.. But here the case is different. The drafts ’were not stolen, but they wei'e sent to Callahan by the plaintiff James Maloney, to be delivered by said Callahan to the very man who received them, and who negotiated them. The mistake, however induced, was the mistake of James Maloney; and in no view of the case does it seem to ús that he ought to be allowed to recover his loss in *88consequence-thereof from parties standing in the relation in which Clark & Co. appear.

The judgment will he affirmed.

All the Justices concurring.