7 Lans. 197 | N.Y. Sup. Ct. | 1872
By the
Court— We are unable to discover any ground upon which we could properly reverse the judgment below. Treating the Merchants’ and Manufacturers’ Bank as the principal in the transaction, there was no valid objection to the defendants demanding and receiving the amounts of the forged checks. The only objection stated is, that the defendants being the drawees of the forged checks, are presumed to know the signature of the drawer; and
We see no reason why the Merchants’ and Manufacturers’ Bank should be treated otherwise than as principals. They received the checks deposited with them by the plaintiff, and passed them to the credit of the latter. The account seems to have been kept in the usual mode in which accounts are
We perceive nothing in the nature of the dealings between the plaintiff and the Merchants’ and Manufacturers’ Bank to take them out of this general rule. If these views are correct they had nothing to assign to the plaintiff. But even if, as is contended by the plaintiff, the Merchants’ and Manufacturers’ Bank acted as their agents merely, and they acted without actual authority in refunding the amount of the forged checks to the defendants, that fact would create no right of action against the defendants in favor of the plaintiff, but would, at most, render the Merchants’ and Manufacturers’ Bank'liable to the plaintiff. As between the defendants and the Merchants’ and Manufacturers Bank, the latter, from the nature of the dealings and under the rules of the clearing house, could be treated as principals only.
The plaintiff having assented that such should be the nature of the agency, thereby conferred upon the agent, as far as third persons are concerned, authority to do in the premises whatsoever they themselves might do. (Story Ag., 60, 106.)
For these reasons the judgment appealed from must be affirmed, with costs.
The Manufacturers’ and Merchants’ Bank voluntarily paid the check for $4,309 to the defendants upon request, without any objections, and that sum was thereby removed from any further reasonable controversy. The defendants retained the first three checks for so long a time after the presentation and settlement at the clearing house that it became quite probable, that the defendants could not maintain a claim to have the amount repaid, but that cóndi-' tian of the case was changed by the subsequent transactions. The mere passing of the checks through the clearing house from one bank to the other did not affect their respective rights, if immediate action had been taken to notify the bank
Judgment affirmed.