Stacy v. Dane County Bank

12 Wis. 629 | Wis. | 1860

By the Court,

Paine, J.

The respondent received from the appellants, for collection, a note against parties residing in Stoughton, about twenty miles distant from Madison, where the bank is located. It was placed by the bank, in due time, in the hands of the American Express Company, a part of whose business was to collect commercial paper, and was taken by it to Stoughton, and delivered to a notary public, who presented and protested it on the second day of grace, whereby the indorser was discharged, and the debt lost. This suit is now brought against the bank to recover its amount.

The theory of the plaintiffs is, that the bank, having received the note for collection, was bound to make due presentment, and give due notice to the indorser, and that it was responsible for the negligence or incapacity of any sub-agents whom it employed for this purpose. The bank, on tbe other band, contends that tbe contract implied by tbe re-of tbe note against a party residing at a distance fr0m its place of business, was not absolutely to make due presentment and give due notice, but to place tbe note in tbe bands of some competent and responsible agent, doing business at tbe residence .of tbe maker, and that having done this, it is itself discharged from liability. This view was sustained by tbe court below, and we think is sustained by tbe authorities. Fabens vs. Mercantile Bank, 23 Pick., 330; Dorchester Bank vs. N. E. Bank, 1 Cush., 77; Warren vs. Suffolk Bank, 10 id., 582; East Haddam Bank vs. Scovil, 12 Conn., 303; Agricultural Bank vs. Commercial Bank, 7 S. & M., 592; Citizens' Bank vs. Howell and others, 8 Md., 530; Hyde vs. Planters' Bank, 17 La., 560; 2 Rob. (La.), 294; Bellemire vs. Bank of U. S., 4 Whart., 105. These cases, and others which might be cited, fully establish tbe rule, that, upon facts like those here presented, there is an implied authority to employ a sub-agent, and that if tbe bank exercises reasonable care and skill in selecting one, it is not afterwards liable for bis default.

A different rule has prevailed in New York; though it was there first decided by the supreme court in accordance with tbe rule as above stated. 15 Wend., 482. That decision was, however, overruled by tbe court of errors, 22 Wend., 215, which has been subsequently followed in that state. It is placed, however, expressly on the ground of the authority of that case, which is impliedly admitted to be in conflict with the commercial rule, as settled in other states. See Montgomery County Bank vs. Albany City Bank, 3 Seld., 463. And the reasoning of the New York courts has not induced the courts of other states to change their decisions. Sec case cited from 1 Cushing.

The testimony in the case showed that there was no bank at Stoughton; that the express company did business and had an office there; and that it was responsible, and was a prompt and reliable collecting agent. We think, upon these facts, the bank discharged its duty by placing the note in the hands of the express company.

The authorities cited also sustain the position that it would be a good defense, to stow that the note was in due season delivered to a notary public at the residence of the for presentment and protest This is placed upon the ground that those officers are appointed by public authority, and that therefore, at least in the absence of any direct notice to the contrary, parties have a right to assume that they are fit and proper agents to discharge the duties of their office. So that if the express company were to be regarded solely as the agent of the bank to transmit the paper, the bank would still show a good defense, by proving that the note- was placed in the hands of a notary at Stoughton, in due time to make proper presentment and protest.

These conclusions dispose of the exceptions taken.

The judgment is affirmed, with costs.