Wetherill v. Bank of Pennsylvania

| Pennsylvania Court of Common Pleas, Philadelphia County | Mar 5, 1833

The opinion of the Court

(Bienes, President; Coxe, J,; and Pet-tit, J.)

was delivered by

Coxe, J.

The two points raised by the arguments of counsel, as necessarily arising from the facts found by the jury, are:

1st, Whether the bank, under the facts, had a right to correct the mistake of the clerk in giving the plaintiffs credit on the 1st of May 1826 1

2d. Whether, after notice by the plaintiffs, that they excepted to such recharge, and that, they held the defendants liable, thereby terminating the defendants’ agency, the defendants, by bringing a suit in their own name against Stuckert, on the said note, pursuing it to judgment, and subsequently taking an assignment of the bail bond, and again suing that to judgment and execution, have not made the debt their own, and thereby shut out any defence they may have had under the first point, if that be in their favour, and thus rendered themselves liable to the plaintiffs for the amount of the note 1

The court, having carefully looked into the authorities cited by counsel, and particularly those relating to the necessity of the plaintiffs’ proving the loss of their debt or special damage (the recent case of Harvey v. Turner, in the supreme court, appearing to bear strongly in favour of the plaintiffs), will pass at once to the second point, avoiding a direct decision of the first.

As to the second point, it appears by the verdict, that upon notice being given, on the 6th of March 1826, of the protest of the note in question to the plaintiffs, they notified Stuckert that unless the amount was paid within ten days they would commence a suit for its recovery ; that on or about the 18th of March the plaintiffs sent to the bank to ascerfain whether payment had been made, when it was extended in their bank book as paid, by defendants’ clerk ; that in the settlement of the bank account, on the 1st of May following, the plaintiffs were recharged with Stuckert’s note, as extended in. error. In May 1826, the plaintiffs notified the bank that they held the bank responsible to them for the amount of this note (see plaintiffs’ letter to defendants of 16lb of January 1828, which .-totes the fact of such notice, which is uncontradicted by the defendants, and which is found in the special verdict), thereby terminating the character of the defendants as their agents, for the reasons stated in the correspondence. The defendants, however, proceeded to treat the note as their own by instituting a suit in their own names against Stuckert; pursuing it to judgment by suing the bail bond in their own names to judgment and execution ; incurring the responsibility of costs and expense of counsel fees without the authority of the defendants to act further as their agents, and in the face of then-notice that they looked to them, the defendants, for the money. The court are of the opinion that, by their conduct, the defendants assumed the property in the note, and became responsible to the plaintiffs for its full amount; as they had no right, after the notice of May-1826, to act as the agents of the plaintiffs, and could only proceed as they did, in their own, and not in the plaintiffs name, with the suits against Stuckert and his bail. The court therefore direct judgment to be entered for the plaintiff on the verdict.

Judgment for plaintiff.