Stamford Bank v. Ferris

| Conn. | Jun 15, 1845

Church, J.

Most of the objections to a recovery by the plaintiff below and to the ruling of the county court, we unanimously believe to be without legal support.

The stock levied upon, was well described, by the officer, in his return upon the. execution. He describes it as twenty shares of the capital stock of the Stamford Bank, being the property of the debtor in the execution, and as having been attached by virtue of the original writ of attachment in the suit. Shares of stock are owned by different persons, and thus only are distinguishable from each other; as the stock of A and the stock of B. A share is a definite proportion of the capital. Richards, the debtor, in this case, owned twenty of these shares; thus showing his interest in the capi-tai stock of the bank ; and this was attached as lhs, and could not be mistaken for the interest of any other person.

The objection arising from a supposed variance between the original execution and the copy left with Mill, is equally groundless. No one can fail to see, that the omission of the name of Wilcomb, in the description of the firm of Abbott ⅜ Wilcomb, was a mere clerical mistake — the names of both these copartners being set out as the party plaintiffs, in whose favour the judgment was recovered.

The other errors assigned, with the exception of the one we are now to notice, we think are not sustained by sufficient causes; and in regard to them, we sanction the opinion of the court below.

On the trial in the county court, the defendants there, claimed, that the assignment of the stock vested the title to it ⅛ the bank, and not in Edward Hill; and that assignments and transfers of the stock of said bank to the bank, or in pledge and security for debts due and liabilities to said bank, were invariably, by the common usage of this bank, made in the same manner as the transfer in question. But the court decided, and charged the jury, that said transfer vested the title of the stock, so assigned, in Hill, notwithstanding the form of this assignment and the contrary usage of the bank. Herein a majority of us believe, that the county court mistook the law. Cases, involving the powers and liabilities of agents and the responsibility of principals, are numerous, and many of them irreconcilable ; and in tracing the progress of the law on this subject, there is to be discovered in the earlier decisions a very obvious departure from common sense. We shallnot now attempt to recall or review the various doctrines alluded to. The question here is, not whether Hill, the cashier and agent of the bank, has done an act which binds either himself or the bank ; but whether, as a matter of law, or of legal construction of the power of attorney and the assignment made under it, that assignment was a mere private affair between Richards and Hill, or whether it was, or might have been shown to be, a transfer, by Richards, of his stock to the bank?

Cashiers of banks are their known agents, and with whom the business public most generally communicate: and in regard to debts due to banks and the securities therefor, these agents must, of necessitv. exercise a very considerable extent of power ; and general usage, we believe, has conformed to this necessity. Fleckner v. Bank of the United States, 8 Wheat. 338, If a third person transact business with the cashier of tt bank, in his character and capacity of cashier, and sueffibusk ness as falls within the scope of his powers ; and'■ especially* as was said by Story, J., in the case above referred to, if doáfe in the ordinary course of the business usually confided to such an officer, it may well be deemed prima facie evidence, that such business fell within the limits ofhis duty, and that he acted for the bank, and not for himself. So a trustee, when acting in the character of trustee, is presumed to act for the benefit of the trust. So of an executor, See. And this presumption is strengt hened, when the act done is adopted by the bank, and never claimed by any of the acting parties as an individual transaction. Johnson v. Blackman, 11 Conn. R. 342. We think that Hill, after receiving this stock, in his capacity of cashier of the Stamford Bank, would not be permitted to claim it as his own, against the bank. In the case of Bickerton v. Burrell, 5 M. & S. 383. it is said by Lord Ellenbormgh, that, “where a man assigns to himself the character of agent to another whom he names, I am not aware that the law will permit him to shift his situation, and to declare himself the principal, and the other to be a mere creature of straw. That I believe has never yet been attempted.” Richards does not claim that this transfer was made to Hill. Hill does not, and cannot claim this. As between all the parties connected with this assignment, it must, therefore, be considered as a valid assignment to the bank. This being so, it is valid and effective against every body else ; because no fraud nor other illegality is seen to exist, by reason of which the creditors of Richards may claim that it is void as to them. Story on Agency, S07.

The foregoing opinion, we think, receives confirmation from the supreme court of the United States, in the case of The Mechanics’ Bank v. The Bank of Columbia, 5 Wheat. 326, A check had been drawn by the cashier of a bank, without any official addition to his name or signature, but it was numbered and dated as a bank check. This, the court say, led to the belief that it was a corporate, and not an individual, transaction. And it was conceded, that if the word cashier had been affixed to the signature, it would have stamped the transaction as corporate, with certainty. So in Bayley & al. v. The Onondaga Ins. Co. 6 Hill, 470. a had been made to the directors of the company, and it was adjudged to be the bond of the company ; because, say the court, the board of directors, being the known legal agents of the corporation, are to be regarded as its representatives in all their official acts. In the case of The Commercial Bank v. French, 21 Pick. 486. Morton, J. remarks : “ So a contract with the stockholders, or with the president and directors, would doubtless, in legal effect, be a contract with the corporation. The principle is, that the promise must be understood according to the intention of the parties.”

Wé suppose that the usage of banks has conformed to these views. When notes, drafts, &c. have been transmitted front bank to bank, it has been done by indorsements by and to their respective cashiers; and in such cases, the title to the paper has always been treated as in the bank, and riot in the individual who happened to be its cashier.

We think that the intention of the parties here is most manifest, that the assignment of this stock should be made to the bank. And it is always unfortunate, because unjust, that the intention should be thrust aside, by what may be considered a technical principle. The power of attorney to transfer this stock was made to Edward THU, as an individual, without allusion to his connexion with the bank, and by it he was empowered to transfer the stock to himself as cashier of the Stamford Bank. The parties understood and acted upon the clear distinction, between Edward Hill, as the attorney of Richards, and Edward Hill, as cashier of the bank.

It has been insinuated, that the principles, which, in such eases as the present, might apply to private individuals, are not applicable to banks and other corporations : that as they ha\e only a limited mode of existence, they are some how to be confined to a technical or prescribed mode of transacting business. At the present day, corporations, acting within their undisputed powers, and especially banking corporations, conform to the fashions of the commercial world in their forms of doing business. The lex rnercatoria knows little of the distinction between legal and equitable titles to commercial paper, or in the transfer of stocks, unless the parties clearly

’nten(*e^ 10 uiake such -distinction. And \vc do not think we in this case, be driven, without some more rigid rule we j£now 0ff to hold, that we have here a case of a legal title in Hill, with a mere equitable title in the bank, and in this way suffer a creditor to come upon such legal interest, and turn the bank round to some known or unknown remedy to preserve its clearly recognized interest in this stock. -

In view of the principles before alluded to, we are at a loss to know how it can be said, that, as a matter of legal inference, the stock in question became the legal estate of Edward Hill. We think the legal presumption is the other way. But if there had been any doubt on this subject, at the trial, it might have been made certain, by parol proof. In Wilson & al. v. Hart, 7 Taun. 295. (2 E. C. L. 112. 114.) Park, J. says, it is the constant course to show, by parol evidence, whether a contracting party was agent or principal. The same doctrine is admitted, in the cases of Bickerton v. Burrell, 5 M. & S. 383, Mechanics’ Bank v. Bank of Columbia, 5 Wheat. 326. Commercial Bank v. French, 21 Pick. 486. And indeed, the only real question, in this part of the case, was, whether Hill acted in this affair, as agent or principal. And if evidence for the purpose of determining this fact was admissible at all, what more appropriate proof could have been received, than the uniform usage of this very bank, and this very agent, in making transfers of a precisely similar character ? This usage was not offered in evidence to con-troul any rules of law, but only to explain the intention of the contracting parties in a matter in which no body but themselves were interested. As was said by the supreme court of Massachusetts, in the case of Lincoln v. The Kennebeck Bank, 9 Mass. R. 157. “The usage adopted by individuals, in any course of business, becomes, as to those parties, rules by which their contracts are to be construed. What is known among parties to be usual in their course of business, is to be taken as assented to.” Blanchard v. Hilliard, 11 Mass. R. 85. In the case of Hood & al. v. Reeve, 3 Car. & P. 532. (14 E. C. L. 432.) an account was produced in evidence, on the face of which was some ambiguity. Best, Ch. J. said, a person who was clerk in the office in which the account was kept, and who is conversant with the mode in which the business was conducted, may be permitted to explain the meaning of the particular item. This usage of the bank was known to every party connected with this assignment. must be inferred, that it was known to Richards from the tenor of the power of attorney, and also because it was’ known in fact to his attorney, Hill.

We are persuaded, therefore, that it was the duty of the court to have submitted it to the jury to determine whether the transfer of the stock in dispute, was made by Richards, to the bank, or to Hill; rather than to have taken the question into its own hands, and decided, as matter of law, that the legal title vested in Hill, notwithstanding the form of the assignment and the usage of the bank.

The defendant in error relies much, if not entirely, upon the authority of the case of The New-England Marine Ins. Co. v. Chandler, 16 Mass. R. 275. It is true, that some of the prominent features of that case appear in this ; and it is the only case we have seen, which gives colour to this defendant’s claim. That was a trustee process, and the question was, whether Burroughs, the cashier of the Union Bank, was the trustee or debtor of Chandler, the principal debtor. Chandler had assigned to Burroughs, as cashier of the bank, certain stock, as security for a debt due to the bank, with the understanding that the surplus should be paid over to him. There was a surplus; and it was admitted, that either the bank or Burroughs was accountable for it; and as between themselves, it was not. very material which. The object was, to find a trustee, who should be chargeable by the creditors of Chandler; and by the laws of Massachusetts, a corporation could not be thus charged. And therefore, the court say, “ if the transfer is to be considered as made to the bank, Burroughs, the cashier, cannot be considered as the trustee of Chandler. And as a corporation cannot be charged as trustee, under our statute, the other creditors would have no remedy against the property, unless they could vacate the transfer, on the ground of fraud.” Here was an irresistible equity on the part of Chandler’s creditors, which could be satisfied, by considering the transfer of the stock as having been made to the cashier, and thus holding him as trustee, and this without working any injustice to the bank or others; and we may, without disrespect, presume, that this equity had an influence upon the decision of that case. But a distinction between that case and the present, seems to us apparent. The controversy there was in respect to the surplus, after the debt of the bank was satisfied, and to which the bank made no claim. Suppose the attaching creditors had claimed the whole stock assigned, on the exclusive ground that the cashier acquired the entire title to the whole, as is now claimed by the creditors of Richards here !

Because a majority of us believe that there was error in the decision of the county court, upon the last point we have considered, we advise that the judgment of that court be reversed.

Waite and Himman, Js., were of the same opinion. Williams, Ch. J.

On the question as to the effect of the

transfer by Richards to Edward Hill, cashier, I think the county court was correct, that it must be considered as a conveyance to Hill, and not to the bank.

It is true, that the strictness which once prevailed in relation to grants to corporations where they were misnamed, is, in a great measure, done away : nor do I desire to see it revived. The rule of law, as well as of common sense, now is, that names were invented to make a distinction between person and person, and if a person or corporation be so described that it well may be distinguished from any other person or corporation, such description is good. Dr. Ayray's case, 11 Co. 20. & seq. Counden v. Clerke, Hob. 32. If the name be expressed in rectu sensu, although not in verbis, it is sufficient. Mayor &c. of Lynne Regis, 10 Co. 124. Medway Cotton Manuf. Co. v. Adams, 10 Mass. R. 362. Mayor &c. of Stafford v. Bolton, 1 B. & P. 44. And where there are two of the same name, an averment will be admitted to show which was meant. Hob. 32. Colt v. Starkweather, 8 Conn. R. 290. But where there are two persons, whether natural or artificial, having their own peculiar name entirely differing one from the other, it is believed there is no authority for saying, that a grant to one will vest the legal interest in the other, as this would directly contradict the writing, and is in fact saying, that a grant or contract made with A. is in fact agraqt or contract with B.

It is said in this case, that the contract is a contract with an officer of the corporation, for a consideration proceeding from the corporation, and therefore may be treated as made , r . J the corporation,

It seems to me, that sped is not the consequence. That the contract was intended for the benefit of those from whom the consideration emanated, may perhaps be fairly presumed; and it may fairly be said, that it shall enure for the use and benefit of such persons. But it does not follow from this, that such a contract transfers the legal estate. Nothing is more common than that the legal estate is given to one for the use of another. If the intent, here was, that the legal estate should have vested in the bank, why was not the transfer made directly to the bank ?

As the object was, to secure debts to the bank, on which Richards was indorser, and which might perhaps be paid by the principal, it may have been intended to place the property in a condition where it might more readily be transferred than if conveyed to the corporation. This would be fairly infera-ble, were it not said to be the usual mode of transfer; and the same reason perhaps has led to this mode. It may be said, that the effect of such a construction would be to make the transfer void, and therefore cannot be presumed to have been intended. The answer to that is, there is no evidence that the failure of Richards was known to Hill, the attorney, when this transfer was made.

There are many cases in ordinary business, where we may look at all the attending circumstances to ascertain who is agent, and who is principal. But those do not apply, it is believed, to cases of this kind, depending upon power derived from a charter, and affecting the interests of third persons.

That a corporation ought to transact its business under the name and in the manner prescribed by the law which gave it birth, as a general rule, cannot be denied.

The act of incorporation, says Ch. J, Marshall, is to them an enabling act; it gives them all the powers they possess. It enables them to contract; and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract, than if the body had never been incorporated. Head & al. v. Providence Insurance Company, 2 Cranch, 169. It is true, that if a corporation has been in the habit of contracting in a mode not author-Jzed by charter, they shall not, by disavowing it, be suffered take advantage of their own wrong, and thus impose upon wor]<j> Bulkley v. Derby Fishing Co. 2 Conn. R. 252, perhaps, the same rule might be applied to an individual, who had contracted with them in a similar manner. But the question is a very different one, when the rights of third persons are concerned, as in the present case. It then becomes a question, who has the legal title 1 An attaching creditor must stand in the same situation as a person who derives his title under a transfer from Hill. Suppose Hill sells these shares as his own, or an officer, wishing to attach them as Richards’ property, is informed they are transferred to Hill, the cashier; could the bank, who, by charter are to contract in their corporate name, claim, as against such persons, that this transfer was in fact to them 1

In New-York, it has been held, that where stock was transferred to secure a debt, and not re-transferred upon payment of the debt, this property being of a peculiar kind, they could not depart from the terms of the law, and inquire into the equity existing between the stock-holders and some third persons; and the court say, it cannot fail to embarrass creditors. If creditors must look beyond the legal title, they can never know against whom to proceed. Adderly v. Storm, 6 Hill, 624. 628.

Where a note was given to the cashier of a bank, or to his order, a suit was indeed sustained in favour of the bank, as if made to the bank by name. The Commercial Bank v. French, 21 Pick. 486. 491. Rut the same court, in a former case, had held, that where a note was endorsed to A. B., cashier, by name, though it was for the use of the bank, the legal title was in the cashier, and he might sustain the suit. Fairfield v. Adams, 16 Pick. 381. And the distinction taken by the court, is, that in the one case, the name of the individual was given with his official title, and in the other, the note is to the cashier, without reference to the individual. 21 Pick. 491. Another case from the same court, is more directly in point. Chandler assigned to Burroughs,as cashier, fifty shares of stock of the New-England Insurance Company, by a written transfer, it being understood between them, that Burroughs was to hold this and other property assigned, as collateral security for debts due to the bank, and might sell and ; pay those debts, and hold the surplus on account of Chandler. Burroughs was cited as trustee of Chandler;- and the defense was, that the interest was m the bank. But the court say, wc think it clear, the transfer is not to the bank, though Burroughs is styled cashier, and the transfer was intended to be made to him in that capacity; for it is obvious from the facts disclosed, that Burroughs himself was to be the depositary, for the benefit of the bank and of Chandler ; and he is called “ cashier,” merely for the purpose of designating the purpose, by an appropriate title. He alone had the legal controul of the stock, and could give title to it by assignment; and although a sale by him without authority of the bank, would be a violation of duty towards the corporation ; yet a purchaser, ignorant of his trust, would hold the legal title to the property. The New-England Marine Insurance Company v. Chandler and trustee, 16 Mass. R. 275.

In this case, as in that, the defendants claimed, that the transfer was merely to secure debts due to the bank, upon which Richards was indorser. Hill, therefore, stands in the same relation to Richards, as Burroughs to Chandler ; and if Burroughs acquired the legal estate, in that case, we see not why Hill did not acquire it here. If the notes on which Richards was indorser, were paid, it would become the duty of Hill to reassign the shares; the object having been accomplished.

It is said, the usage of the bank, is, to take transfers in this way. Suppose it had been the usage to take deeds of real estate to the cashier, to secure debts due to the bank ; would it follow, that the legal title vested in the bank? Does the usage, if proved, change the character of the transaction, or show where the legal title is ? The usage may tend to prove for whose use the transfer was intended, and that the bank was satisfied with the security in this form. In the case last cited, it was said, this was the usual course of banks, and it had always been considered, that property thus transferred vested in the corporation ; and that if it was not so held, the banks would be exposed to loss, &e. But the court said, that consequence, it is true, may be apprehended ; but it can be guarded against, by adopting another course ; and it is for these and all other corporations to conform to the law, and not for the law to bend to their convenience.

Believing that the result to which that court arrived, is conformable'to principles recognized by us, and knowing no conflicting decisions, I feel bound to depart from the opinion expressed in favour of the reversal of this judgment.

Stobrs, J. concurred in this opinion.

Judgment reversed.