184 Mass. 49 | Mass. | 1903
The sole question is whether the note was paid before the defendant was notified of the failure and assignment of the makers. The judge found that it had not been paid. This finding must stand unless there was some error of law made at the trial.
The facts do not seem to be in dispute, and, stated in its lowest terms, the real question is whether they show as matter of law a payment of the note.
The note properly indorsed was sent several days before its maturity to the defendant for “ collection and remittance.” The makers were regular depositors at the defendant bank, and the note was upon its face made expressly payable there. On Monday, October 7, 1901, the time for the payment of the note bad come. It was in the hands of the defendant as the indorsee and holder for collection, and the deposit of the makers then in the defendant’s hands was more than sufficient to pay it.
It is well to see what were the duties and powers of the defendant at this time with reference to the note. The defendant as the indorsee and representative of the real owner of the note was the party entitled to demand and receive payment. Payment to it by the makers would be therefore a payment of the note. It had a further duty, which was to remit to the plaintiff the money received from the makers. It is obvious that this last act was no part of the payment of the note. It was an act
What was the relation of the defendant to the makers, and what could it do as their agent ? It had in its vault money belonging to the makers and sufficient to pay the note which was expressly made payable at the bank. In England it is well settled that if an acceptor makes his acceptance payable at a particular bank it is tantamount to an order on his part to the bank to pay the bill to any person who by the law merchant is entitled to give a good discharge. See Robarts v. Tucker, 16 Q. B. 560, 578; Dan. Neg. Instr. (5th ed.) § 326 a, and cases therein cited. And although in this country there is some conflict, still it would seem that by the weight of authority a note payable at a bank where the maker keeps his account is equivalent to a check drawn by him upon that bank, so far at least as respects the power and duty of the bank to pay it. Indig v. National City Bank, 80 N. Y. 100, 106, Wyman v. Fort Dearborn National Bank, 181 Ill. 279, and other cases cited in Dan. Neg. Instr. (5th ed.) § 326 a. But whatever may be the rule in the absence of any directions to the bank from the maker, it appears from the evidence in this case that the defendant, in accordance with the understanding between it and these makers, had been in the habit of paying their notes when made payable at the bank, and in accordance with this course of dealing it must be assumed that the bank was directed by the makers to pay this note at maturity out of the deposit then standing therein to their credit. Indeed the defendant does not contend to the contrary. Since the cashier represented the bank, his act and purposes were those of the bank.
In this state of things the cashier, charged with the duties and invested with the powers of the defendant both as to the plaintiff and as to the makers respecting this note, proceeds on October 7, 1901, soon after the beginning of the day’s business, to the performance of his task. He intends as agent of the makers to pay this note to his own bank, the indorsee and holder, and as such entitled to receive payment and discharge the note. He intends as cashier of his own bank to cancel and discharge the note when paid, and then as agent for the makers
We are of opinion that prior to the call to the telephone the note had been paid by the makers to the defendant, and that the only remaining duty resting upon the defendant was to remit the proceeds to the plaintiff. As against the makers the defendant was the indorsee and holder of the note. As the agent of the makers it had been requested by them to pay it. No check was expected from the makers. The note itself was equivalent to a check. It stood exactly as though the makers owing the bank had delivered to it a check in payment. When the bank, through its cashier, wrote upon the face of the note in its own name as the indorsee and holder that it was paid, and perforated it and put it in the files as a thing paid, nothing more was to be done as to the payment. By those acts there had been set apart and appropriated to the payment, of the note so much of the deposit
We think that under the circumstances disclosed in this case the third instruction requested should have been given. In accordance with the terms of the report there is to be a.
New trial.