124 Neb. 231 | Neb. | 1933
This is an action in equity by Bertha Gross, intervener, to impress a trust in her favor in the amount of $145 upon the assets of the Columbus State Bank, an insolvent institution. In the district court judgment was given for the intervener, and the receiver, a representative of the depositors, who are the real parties in interest, appeals.
The facts making up the transaction out of which the litigation arises are not substantially in dispute, and embrace the following: Miss Gross, a teacher of the Columbus city schools, in payment of salary received a school warrant, of which the following is a copy:
“Columbus, Nebraska, 10/15/30.- No. 12. Treasurer of School District City of Columbus. Pay to the order of Bertha Gross $145, the sum of one-hundred forty-five and no/100 dollars, out of. any moneys in your hands belonging to the general fund. Payable at par through any bank in Columbus, Nebraska. John L. Pittman, President. O. F. Walters, Secretary.”
Intervener indorsed her name on the back of this instrument in the form of an indorsement in blank, placed the same in an envelope which she addressed to an “out of town bank,” and to which she affixed the necessary stamp, and then intrusted the same to one of her pupils, a fourteen year old girl, with directions to deposit the same in the United States mails for transmission to the addressee. This messenger, unfaithful to her trust, removed this school warrant from the envelope and, aided by and because of the genuine signature of the payee regularly indorsed on the back thereof, “cashed” the instrument at the Columbus State Bank. The president
The language of the original school district warrant with its indorsement is quite consistent with the course of business outlined by the evidence. Written across the back of the warrant appears the genuine signature, “Bertha Gross.” Under it appears the impression of the cancelation stamp of the Columbus State Bank, and there also appears the perforation cancelation stamp of the Commercial National Bank. Both of these stamps appear to have been applied to the school warrant in the same manner as when applied to checks paid at their respective counters.
It would also seem that we are fully justified in hold
It is quite obvious that these transactions, so far as the banks engaging therein are concerned, could not be considered as investments made by them or entered into by them for their individual financial advantage.
Even so, it must be admitted that not only are the terms of the basic instrument which constitutes the source of this litigation unusual, but the course of business is itself novel. As part of the warrant, as already noted, we find the words, “Payable at par through any bank in Columbus, Nebraska.” The word “payable,” when used in promissory notes and other commercial transactions, means ordinarily “to be paid,” rather than “which may be paid.” Johnson v. Dooley, 65 Ark. 71, 40 L. R. A. 74.
A check, on the face of which appeared the words “payable through (a named bank in another city of the same state) at current rates,” was before the supreme court of Georgia in the case of Farmers Bank v. Johnson, King & Co., 134 Ga. 486, and it was held that this was a material part of the direction, that the check “is to be paid in that way,” and that the drawee bank was not required to pay the check when not presented through the bank thus named but directly by a third bank.
Our court is likewise committed to the view that the
Thus, we see that the words “payable at (a designated bank)” employed in commercial paper are effective to create an agency where legal demand for payment may be made which will be binding on all parties thereto. 8 C. J. 549.
By parity of reasoning, in consideration of the established facts of the instant case, and accepting the principles announced in Farmers Bank v. Johnson, King & Co., supra, we arrive at the conclusion that the employment in this transaction in a similar manner of the words, “payable at par through (a designated bank),” was necessarily intended, and is effective, to create an agency for payment vested for the purpose expressed with full and complete powers of the principal. The designated bank is the agent of the maker of the instrument. Its acts within the scope of the authority conferred are the acts of its principal. Whatever may come into its possession because of such acts, or pursuant thereto, is and must be deemed the property of the principal. And if such agent, in any of such transactions, advances or uses its own moneys or funds, such moneys or funds will, in equity, be deemed advancements made to the principal, and for its use and benefit, and for which the agent will be entitled to reimbursement. But such advancements of moneys and funds by the agent will not, as against his principal, ordinarily invest the agent with title to the obligation, for the payment or discharge of which such moneys or funds were employed.
Where an agent “is employed to compromise or settle claims against his principal, he will not be permitted to purchase such claims himself and enforce them against his principal.” 2 C. J. 708. See, also, Crile v. Fries, 86 Neb. 789.
Neither will his right to reimbursement be limited to
Thus, the evidence in the record establishes that every act performed by the Columbus State Bank was the act of an agent, and ostensibly within the scope of the authority evidenced by the terms of the school district warrant which it paid. Though the money actually paid was money advanced by it to and for the benefit of its principal, the school district, yet as paid over to the party cashing this warrant, it was in equity the money of the school district and not of itself. This warrant with its “paid stamp” impressed thereon was thereafter promptly
Nor can this conclusion be affected by the question of the power of the school district to create an agency for payment. Ostensibly such agency was created by the express language employed in the warrant before us. This transaction was carried out and completed by both school district and bank in strict compliance with the powers thus conferred. No act was performed therein by the Columbus State Bank inconsistent with its character as agent, the fruit of the agency was accepted by the school district, reimbursement was made, and on this basis the transaction was closed.
In thus denying the claim of intervener to impress a trust upon the assets of the Columbus State Bank to the extent of the value of this warrant, we are not overlooking the following contentions: That a school district
Conceding these principles, as applied to certain concrete cases, to be correct statements of common law doctrines, the fact remains that this court has denied their application in cases where the controlling facts were substantially identical with those of the instant case, and refused recovery to the admitted owner of the warrant.
We refer to the Bartley cases which are reported as follows: Bartley v. State, 53 Neb. 310, on rehearing 55 Neb. 294, State v. Omaha Nat. Bank, 59 Neb. 483, and State v. Omaha Nat. Bank, 66 Neb. 857. To set forth fully the facts involved and the varying judicial views would unduly extend this opinion. But we may epitomize the facts involved as follows: Bartley was state treasurer. Pursuant to legislative authority, and to reimburse the state sinking fund, on April 10, 1895, a state warrant in due form was issued, which in terms directed the “Treasurer of Nebraska, Pay to J. S. Bartley, or order (a sum definite),” and which on its face recited, “For to reimburse state sinking fund.” This warrant was by the state treasurer indorsed, “Presented and not paid for
The rule, controlling, announced by Day, C. (later a justice of this court) in the final opinion which a majority of this court adopted is: “Where property has
Miss Gross’ messenger on this occasion was her servant. “The master’s possession of personalty continues where he delivers a thing to his servant to be by him kept, used, carried, or applied in the course of his employment as a servant. The servant is said to have, not the possession, but a mere charge (onus) or custody.” 1 Labatt, Master & Servant (2d ed.) 733.
“Custody of property means such a relation towards it as would constitute possession if the person having custody had it on his own account.” 8 Am. & Eng. Ency. of Law (2d ed.) 530.
The instant case, in view of the admitted facts, would fall within the exception to the general rule above announced by Judge Day, and it would for this reason, in addition to the one heretofore given, follow that the evidence in the record is wholly insufficient to sustain the determination of the trial court.
The judgment of the district court is therefore reversed and the cause remanded.
Reversed.