151 Mo. 320 | Mo. | 1899
This is an action to recover the sum of $9,000, the amount of a draft sent by the Hide and Leather National Bank of New York, to the defendant at St. Louis for collection, and by it forwarded to plaintiff at Kansas City, Missouri, for collection and return. The action is predicated upon the alleged justifiably mistaken belief with respect to the solvency of the drawee, one Erank E. Tyler, who was doing business under the name of Benj. McLean & Company, and .therefore took his check on another bank for the draft, and delivered the draft to him, and on the same day sent its draft to defendant for the amount, supposing the check to be good and that it would be paid on presentation in the usual course of business. But the check proved to be worthless.
The case was tried by the court, a jury being waived. There was a judgment for defendant, and plaintiff appeals.
For several years prior to April 21st, 1893, Erank E. Tyler, had been doing business in Kansas City, New York and
Tyler’s place of business was at Armourdale, Kansas, some five or six miles from the National Bank of Commerce, and upon receipt of the.draft the plaintiff bank informed hiito. by telephone that it held it for collection, whereupon Tyler promised to send over and pay the same. This was the customary way of making collections from Tyler. But in this instance there was evidence upon the part of the defendant which tended to show that the draft upon Tyler was accompanied by a letter from it containing the following, to wit: “Oaution. Protest all paper and deliver no bills of lading without payment of draft unless otherwise instructed. Wire non-payment items over $500. Keturn promptly all unpaid items.” Hpon the part of plaintiff however there was evidence tending to show that this letter was never received by it.
At the same time plaintiff received the draft in question from the defendant, it also received from the St. Louis
About 3:30 o’clock in the afternoon of the day upon which Tyler was notified by plaintiff that it had the $9,000 draft for collection, he sent to plaintiff his check on the Metropolitan National Bank of Kansas City, for the amount of both of said drafts; and, upon the receipt thereof, the plaintiff surrendered to him both of said drafts, and the said bill of lading, and remitted to defendant the amount of the $9,000 draft.
At that time Tyler’s financial standing seems to have been unquestioned.
When Tyler’s check was received by plaintiff it was after banking hours, but the next day the 21st, it was placed in the clearing house for collection. The taking of the check, and placing the same in the clearing house the next day for collection, seems to have been in accordance with the prevailing custom among the banks of Kansas City in regard to such collections. The Metropolitan Bank refused payment of the cheek, of which the plaintiff was notified about three o’clock in the afternoon of the 21st, and that evening plaintiff’s assistant cashier notified defendant by váre of its non-payment and requested it not to remit the amount to the Hide & Leather National Bank, but the telegram was not received by defendant until the morning of the 22d, when defendant wired the Hide & Leather National Bank that plaintiff claimed to have remitted through mistake, and asked it to cancel the charge made against defendant’s account, which it refused to do.
Tyler was indebted to said Hide & Leather National Bank, on a note in the sum of $10,000, which was independent of this $9,000 transaction, and on the 24th of April it begun suit against him in New York on said note, and attached everything he had in that State; and realized out of the attached property about $7,000.
On the morning of the 22d of April the plaintiff wired to several different places where Tyler was supposed to have property, directing the bringing of attachment suits. A small quantity of property was found and levied upon at El Paso, Texas, and also at Albuquerque, N. M., but soon thereafter an agreement was made between plaintiff and Tyler, whereby the proceeds of this property, less expenses, were turned over to plaintiff and applied to reimbursing it for amount paid on the said $1,283.20 draft to which the bill of lading was attached, and was not fully sufficient for that purpose. Thereupon all attachment suits were to be dismissed, and all were dismissed, except that at Kansas City, Kansas, which, through some oversight, was not dismissed. Plaintiff supposed it had been dismissed.
At the time of the institution of these suits, and for a long time thereafter, the plaintiff had no knowledge as to the actual facts connected with said $9,000 draft, not knowing the circumstances under which the same was taken by said Hide & Leather National Bank, or whether said bank had paid out anything on the faith of the remittance by plaintiff to defendant. Soon after the institution of these suits, plaintiff wrote to defendant that it would look to it for said $9,000, but that it believed the money might be collected from Tyler by prose-
To the letters containing these statements "Walker Hill, defendant’s cashier, replied by letter of date April 29, 1893, “I wired New York on Monday, if possible withhold credit but they declined to release us if we had proceeds of items in our hands. ... I will say to you and your attorney in the most emphatic language, that any suits you may bring to get your money back from McLean, will be at your cost and risk, as this bank denies any liability legally, morally or any other way.”
Neither the defendant nor the Hide & Leather National Bank sustained any damage or lost any remedy against, or recourse upon said Tyler or his property, or anyone else, by reason of anything done by plaintiff concerning said draft. Tyler was hopelessly insolvent, and the said Hide & Leather Bank levied upon, and subjected to the payment of another claim, all the property he owned, except the small quantity the proceeds of which were received by plaintiff as before stated.
This action was begun on the llth day of March, 1894, and thereafter plaintiff took depositions and ascertained the facts above stated as to the connection of said Hide & Leather National Bank with said $9,000 draft, the suit by said bank against said Tyler.
At the close of all the evidence the court declared the law to be that under the pleadings, and all the evidence in the action, the plaintiff could not recover, and in accordance therewith rendered judgment for defendant.
With these legal principles in view was plaintiff guilty of negligence in its manner of handling the collection of the draft in question? Plaintiff contends that it was not, and that in taking from Tyler his check on the Metropolitan Bank, and in putting it in the clearing house for collection, it did all that it was legally required to do; that being the usual and customary way of transacting such business.
In 1 Morse on Banks and Banking (3 Ed.), sec. 252, it is said: “If the bank takes the check of the party who is bound to pay the paper, and thereupon surrenders the paper to him, it assumes the responsibility for the cheek proving good. If it is not paid, the bank is still obliged to pay the amount to the person from whom it received the paper.” [Bank of Antigo v. Union Trust Co., 149 Ill. 343.] The general rule is that an agent being authorized to receive money only, has no implied power to receive a check, or anything else except money, in payment, and if he does so he assumes the risk of its payment, and becomes liable to his principal for the amount of the check with interest from the date of its receipt by him. [Essex County Nat. Bank v. Bank of Montreal, 1 Bissell 193.] In such circumstances the law will presume damages to the principal and dispenses with proof thereof. [1 Daniel on Negotiable Inst. (4 Ed.), sec. 335.] Later on the same author
"When plaintiff bank received Tyler’s check on another bank in payment of the draft of the Hide & Leather Bank on him, and surrendered to him the draft, it made the check its own and its liability to the Hide & Leather Bank became fixed, as much so as if it had received the cash. [Fifth N. Bank v. Ashworth, 123 Pa. St. 212 ; Commercial Bank v. Union Bank, 11 N. Y. 203.]
It is true that it is said in 1 Morse on Banks and Banking, sec. 252: “But if the bank can show that it has conducted itself in the transaction in strict accordance with the customary and established mode of transacting such business, it seems that this might suffice to acquit it of all responsibility for any mishap. For it has been held in England that a banker who gave up bills indorsed to him for collection, upon receiving the acceptor’s' check, which was subsequently dishonored, could not be charged with negligence because the transaction was not an unusual one. It may be doubted whether it would free a banker from liability if he should simply show a frequent habit of parting with paper upon receiving the check of the debtor; or whether he would not have to go fur
That plaintiff at first regarded the check as its own, and so treated it, is evidenced by the several attachment suits instituted by it against Tyler on the check, and its communication with defendant both verbal and written with respect thereto. It is true that shortly after the institution of the attachment suits, but not until then, plaintiff wrote to defendant that it would look to it for said $9,000, but that it believed the money might be collected from Tyler by prosecution of these suits and that unless defendant informed it to the contrary, plaintiff would take it for granted that it was understood between it and defendant, that it should treat the claim as its own, and make an effort to collect the money, and. that by doing so it should not waive any of its rights as between it and defendant; but defendant replied that any suits that plaintiff might bring to get its money back would be at its own cost and risk, and denying all liability upon its part. It doesn’t look reasonable, nor are we disposed to believe, that plaintiff would have pursued this extraordinary remedy in order to collect a debt which it did not regard as its own, and that it would have continued .its pursuit, especially after having been notified by defendant that if it did so, it would be at its own cost and risk.
Whatever the usage may be with respect to the suri*ender of an obligation for the payment of money to the obligor by the owner thereof upon the receipt of a check given for its payment, as between an agent of the principal and the
II. But plaintiff contends that neither the defendant bank nor the Hide & Leather Bank sustained any damage whatever by reason of the course pursued by plaintiff, and therefore plaintiff is entitled to recover the money from defendant regardless of the question as to whether it was negligent in handling the collection of the draft in. question.
We are however unable to agree to this contention. The draft was received by plaintiff after banking hours on the 20th, and if demand for its payment in money had been made upon Tyler that evening and refused, and prompt notice of its nonpayment given to the Hide and Leather Bank, it would have received the notice the same evening, at any rate by the next morning when in fact it did not receive notice of the nonpayment of the check until the 22d, a delay of from twenty-four to thirty-six hours. It is true that upon receipt of the notice of the non-payment of the check the Hide & Leather Bank attached all it could find of Tyler’s property in the State of New York, on another claim which it held against him, yet if the draft had been presented and payment refused and it had at once been notified on the evening of the 20th, it may be that it could have found other property of Tyler’s which it could have attached on this debt. But in the view we take of the case the measure of damages is of no importance as in no event is plaintiff entitled to recover.
III. Another contention is that the money, although paid by plaintiff to defendant as the agent of the Hide and Leather Bank, as defendant was notified before transmitting it to its principal that it was paid through a mistake, may be recovered back. It seems both upon principal and authority that where money has been paid by one joint agent to another
It is insisted by defendant that plaintiff having elected to treat the check as its own, and brought several attachment suits thereon against Tyler, that it can not now pursue a different and inconsistent remedy by prosecuting this suit against it, but as what we have already said necessarily results in an affirmance of the judgment it is unnecessary to pass upon that question.
Eor these considerations we affirm the judgment.