91 N.Y. 531 | NY | 1883
The stocks to recover the value of which this action was brought, were originally pledged as collateral security for a loan made by the defendant to Moller Co., for the benefit of Julia G. Hunt, the plaintiff's assignor. They were afterward used to secure moneys loaned to Moller Co., on their own account by the bank. Moller Co. were the brokers and agents for Mrs. Hunt, and the question to be determined is whether the defendant, the bank, had knowledge that they were loaning to Mrs. Hunt and receiving her stocks in pledge for the sum of $35,000 only, and that Moller Co. were her agents and not the owners of the stocks. (Merchants' Bank v. Livingston,
The request to charge that the tender of $46,000 was an admission that that amount and interest was a proper claim of the bank upon the stocks was properly refused. We think *536
that the tender was not conclusive upon the plaintiff as admitting that the defendant had a lien upon the stocks for that amount. It was made with a view of arranging the controversy without litigation, and the principle is well established that concessions made for the purpose of securing a settlement of the controversy cannot operate to the prejudice of the party making them. Where a tender is made, for the purpose of obtaining property of the owner, sold and in the hands of the tenderee claiming to own the same, and accepted, the money paid may be recovered back. (Briggs v. Boyd,
We think it very clear that if the bank had knowledge at the time they made the loan of $35,000 that the brokers were acting as agents for Mrs. Hunt, and that Moller had no authority as agent for Mrs. Hunt except to make the loan for that amount, the power of attorney given to the brokers, although absolute on its face, did not authorize a loan beyond the $35,000.
The judgment should be affirmed.
The record in this case also brings up for review an appeal from an order of the General Term, affirming an order of the Special Term, denying a motion to change the place of trial. It appears from the motion papers that the plaintiff in this action resides in the county of Kings and the defendant is located in the city and county of New York; the place of trial named in the complaint is the county of Kings, and the question presented upon this appeal is whether a National bank can be sued in the Supreme Court of this State out of the county where it is located. This question involves the construction to be placed upon various provisions of the U.S. *537 Revised Statutes. By section 5136, subdivision 4, it is declared that a duly organized National bank shall have power: "To sue and be sued, complain and defend in any court of law and equity as fully as natural persons." By section 5198 as originally enacted it was provided, "the taking * * * a rate of interest greater than is allowed * * * shall be deemed a forfeiture of the entire interest * * *. In case the greater rate of interest has been paid, the person by whom it has been paid * * * may recover back in an action in the nature of an action of debt twice the amount of the interest thus paid from the association taking or receiving the same, provided such action is commenced within two years from the time the usurious transaction occurred." This section was amended in 1875 by adding as follows: "That suits, actions and proceedings against any association under this title may be had in any Circuit, District or Territorial Courts of the United States held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases."
Section 5198, supra, as it was before this amendment, related to actions for forfeitures and penalties for taking a greater rate of interest than is allowed by law to National banks, and there is some ground for claiming that this amendment was to be limited and confined to cases where actions were brought against National banks for penalties under the law cited. Such a construction would be consistent with the provisions of section 5136, which relates to suits brought by and against National banks. The amendment was without doubt intended to give jurisdiction to State courts, in suits for usury penalties, which previously did not exist, and was confined to the courts of the United States. (See U.S.R.S., § 711, subd. 2.) It will be noticed that the amendment in question uses the word "may," thus indicating that it was not intended to be imperative or compulsory, or in any way inconsistent with the provisions of section 5136, which declares that these banks may "sue and be sued, complain and defend in any court of law or *538 equity as fully as natural persons." It is true that in the construction of statutes the word "may" is sometimes construed as meaning "must," in order to carry out the intention of the framers and the object of the law. But such a construction in this case might lead to great practical inconvenience and would be evidently inconsistent with the object of the provision in question; it would confer special rights and privileges on these institutions and compel parties who had claims against them to bring suits in the location where they were situated and subject them to great expense and unnecessary trouble. This might act as a very great hardship in cases where actions might be brought in favor of one of these institutions, located at a distance from the other sued. This could never have been intended, and the evident purpose of the amendment was to give authority to sue these institutions in the State court, if it did not previously exist under section 5136.
We think it is also a legitimate construction of the provision of the act that the words restricting the bringing of suits were confined to local courts, such as county courts and municipal courts, and not to the Supreme Court of the State, and that a party living in a county at a distance from a National bank has a right to bring an action in his own county against it for any lawful claim; subject to an application to change the place of trial for the convenience of witnesses in accordance with the practice of the court. The rule contended for by the appellant's counsel, that "if an affirmative statute which is introductive of a new law directs a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner," has no application to the case presented by the appeal-book, and to the statute intended to regulate the proceedings of courts in reference to suits which it might be necessary to institute against corporations. It must be borne in mind that the statute in question was for the benefit of parties in the prosecution of their rights against banking institutions in the courts of the State where they were located, and was not an imperative provision for the purpose of restricting or limiting such right. The case of *539 Hagadorn v. Raux (
For the reasons stated the order should be affirmed.
All concur.
Judgment and order affirmed.