Nicoletti v. Bank of Los Banos

WILBUR, C. J. The plaintiff alleges in his complaint that he delivered $550 to the defendant bank on February 15, 1915, whereupon the defendant ‘ ‘ agreed, in writing, and for a valuable consideration, then and there paid, to *638 remit said money, duly exchanged in foreign currency, to plaintiff’s mother, Rosa Nicoletti fu Innocenzo, then residing in Chiatri, Italy.” It is alleged that the defendant did not remit said money or any part of it to the plaintiff’s mother, Rosa Nicoletti fu Innocenza, then residing at Chiatri, Italy, and that the money had not been paid to her. The defendant by its answer admitted the receipt of the money and that plaintiff “requested the said defendant to transmit five hundred and fifty dollars ($550) in gold coin of the United States, duly exchanged in foreign money, to Rosa Nicoletti, at Chiatri, Italy, and the said defendant then agreed to transmit the same in accordance with banking customs, and through ordinary banking channels for transmission of money to foreign countries, and the said plaintiff then and there delivered said sum of money to the defendant for that purpose,” and alleges in detail the manner of the performance of its contract. It will be observed that the plaintiff alleged an agreement to “remit” the money and the defendant an agreement to “transmit” the money to Rosa Nicoletti at Chiatri, Italy. The difference between the allegations of the complaint and the admissions of the answer being in the allegation in the complaint that the words “fu Innocenzo” were added to the name Rosa Nicoletti, these words being omitted in the answer. Upon the trial it was stipulated that on February 15, 1915, plaintiff delivered to the defendant $550 “for transmission through its ordinary banking channels to Chiatri, Italy; that plaintiff herein claims that he instructed defendant herein to cause the same, or its equivalent, to be delivered to Rosa Nicoletti fn Innocenzo, who is his mother, at that place, and that defendant herein claims that he instructed it to deliver the said money, or its equivalent, to Rosa Nicoletti of Chiatri, Italy; that plaintiff’s instructions to defendant, as aforesaid, are a matter in dispute and the right is expressly reserved to both parties to introduce evidence thereupon.” (Italics ours.) It was also stipulated that San Filippo is a postoffice near Chiatri, Italy, and that there is no postoffice at the latter place; that there are three persons living in San Filippo named Rosa Nicoletti. Thus at least four persons named Rosa Nicoletti had their post-office address at San Filippo. The bank in Milan, Italy, to which the money was transmitted by defendant mailed a *639 postal card to Rosa Nicoletti at Chiatri, Italy, by addressing it to Rosa Nicoletti at San Filippo, Italy. It was received by Rosa Nicoletti del fu Carlo Ridondelly, and upon her reply the Milan bank forwarded the money through the postoffice to the latter person, who received and receipted for and spent the same. The trial court found that the plaintiff paid the defendant $550 in gold coin and that the defendant “then and there agreed in writing, and for a valuable consideration then and there paid, to remit said money duly exchanged in foreign currency, to Rosa Nicoletti, at Chiatri, Kingdom of Italy. That the said agreement is evidenced by a certain writing, delivered by defendant to plaintiff herein at the time of the said transaction, which writing is in words and figures following: “ (No. 106314—place and date, Los Banos, California, February 15, 1915.) “Received of A. Nicoletti 550 dollars for payment of 2870 lire (foreign currency) to be remitted to Rosa Nicoletti in Chiatri, Italia. “Signature “P. J. Daly, Teller. that the same is the only written evidence of the said agreement.” (Italics ours.) Upon the controverted fact as to the person to whom the money was to be transmitted, it is thus found by the court that the agreement was to transmit the money to “Rosa Nicoletti, at Chiatri, Italy.” It was also found by the court that the money was transmitted through the Mechanics’ and Metals National Bank of New York City, which bank was the correspondent of the defendant and through which it customarily transmitted money to foreign countries and that such bank “was a proper channel through which to transmit the same in accordance with established banking practices.” The court found that the Italian bank at Milan, Italy, was negligent in its delivery of the money to Rosa Nicoletti at San Filippo instead of at Chiatri and that the bank in Milan, Italy, “was the agent of defendant herein in the said transaction.” Judgment followed for the amount claimed, and defendant appealed and filed a bill of exceptions specifying that the evidence was insufficient to justify the finding that the defendant agreed to.remit the money to Rosa Nicoletti, “but, on the *640 contrary, the evidence shows that the said defendant agreed to transmit the same to the said Rosa Nicoletti through its ordinary bamking channels,” and, second, that “the evidence is insufficient to justify the finding that the Societa Bancaria Italiana at Milan, Italy, was the agent of the defendant herein in the said transaction.” (Italics ours.) If there had been an express agreement to deliver the money to Rosa Nicoletti at Chiatri, Italy, there is no doubt that the plaintiff would be entitled to recover for the failure to do so. But the agreement alleged in the complaint, admitted in .the answer, stipulated to by the parties and found by the court, was an agreement to remit the money to Rosa Nicoletti, at Chiatri, Italy. An agreement to “remit” or “transmit” money is an agreement to send and not an agreement to deliver. The distinction is important because it fixes the status of the subagencies through which the money is to be transmitted and the consequent responsibility for the negligence of such subagencies. The decisions upon the effect of a contract to remit money are few and recent, and the one most nearly in point is the case of Katcher v. American Express Co., 94 N. J. L. 165 [109 Atl. 741], decided March 19, 1920. In that case the court of errors and appeals of New Jersey had under consideration a contract in the form of a receipt issued by the American Express Company, which states as follows: “Received,” etc., “For remittance to Tese Kacjur. At Bereznier, Luckiy, Wolynck.” In discussing the effect of such an agreement where the money had not been delivered, the court said: “But, in view of the importance of the case as typical of a great number of similar transactions, we are not disposed to rest our decision on a mere question of pleading. The fundamental issue is as to the duty of the defendant under its contract. Plaintiff claims that defendant agreed to deliver the money, dollars or rubles, to Tese Kaczier at the place named. We are unable to read any such agreement from the written contract even as supplemented by parol evidence. It uses the word ‘remittance’ twice, and the word ‘forward’ (as a verb) once. Without doubt the two words are used synonymously. As we have said, the word ‘ deliver ’ is not used at all. The definitions of the word ‘remit’ in standard authorities do not involve the idea of delivery: *641 “ ‘Remit. (2) To transmit or send, as money, bills, or other things in payment for goods received. [Quoting from Goldsmith] ; I have received the money which was remitted here in order to release me from captivity.’ Century Dictionary. “ ‘To transmit or send, especially to a distance, as money in payment of a demand, account, draft,’ etc. New International Dictionary. “See, also, 24 E'ncy. Law (2d ed.) 461, and Comber v. Leyland, [1898] A. C. 530. “So the word ‘forward’ is defined in both these authorities as: “ ‘To send forward; to send toward the place of destination; to transmit.’ “See Buell v. Chapin, 99 Mass. 596 [97 Am. Dec. 58]. “The proper interpretation of the contract before us is this: That the express company was to convert the plaintiff’s money, after deducting its own charges, by cable into rubles in Russia; that plaintiff had paid in sufficient to obtain these 1000 rubles after paying charges; that this sum of 1000 rubles was to be forwarded, or remitted, which amounts to the same thing, to Tese Kaczier at the given address by the usual course of the Russian mail. This was the extent of appellant’s primary duty under the contract. ...” The principle controlling the duty of a bank receiving commercial paper collection at a distant point would seem to be equally applicable to an agreement to transmit money to such a point. We are not lacking an authority upon that question in California, although the decisions are not agreed upon that matter. In the case of Davis v. First Nat. Bank of Fresno, 118 Cal. 600 [50 Pac. 666], this court, in dealing with the question of the liability of a bank which had taken a draft for collection, held that its duty was complete when it sent the draft through ordinary banking channels to another bank for collection, and this was true even though the plaintiff did not know that such was the custom of the bank. In that regard the opinion states as follows: “In making the collection the bank was acting as the agent of the plaintiff, and from the nature of the transaction Avas required to employ a subagent, and, as the agent *642 of the plaintiff, was bound to exercise reasonable care and diligence, as well in the employ of its subagent as in the discharge of any other of the duties assumed by it. If in making the collection it followed the course usually taken by banks under similar circumstances it cannot be held to have been negligent (Dorchester Bank v. New England Bank, 1 Cush. (Mass.) 177; Indig v. National City Bank, 80 N. Y. 105).” The decision of the supreme court of Massachusetts thus cited by this court as authority for the decision (Dorchester Bank v. New England Bank, 1 Cush. (Mass.) 117) contains the following: “The bills undoubtedly were intended to be transmitted to Washington for collection, and if the defendants employed suitable subagents for that purpose, in good faith, they are not liable for the neglect or default of the sub-agents. This was so decided in Fabens v. Mercantile Bank, 23 Pick. (Mass.) 330. The chief justice, in delivering the opinion of the court, says: ‘It is well settled, that when a note is deposited with a bank for collection, which is payable at another place, the whole duty of the bank so receiving the note, in the first instance, is seasonably to transmit the same to a suitable bank or other agent at the place of payment. And as a part of the same doctrine, it is well settled, that if the acceptor of a bill or promisor of a note has his residence in another place, it shall be presumed to have been intended and understood between the depositor for collection and the bank, that it was to be transmitted to the place of the residence of the promisor. ’ This decision of the court on both points is, we think, well founded in principle, and supported by a decided weight of authority. . . . “If the bank in that case acted in good faith, in selecting a suitable subagent, where the bills were payable, there seems to be no principle of justice, or public policy, by which the bank should be made liable for the neglect or misfeasance of the subagent. And it is admitted, by Mr. Senator Verplaneh, who states the grounds of the reversal of the judgment, that the bank would not have been liable, if there had been an understanding or agreement, express or implied, that the bills were to be transmitted to another bank for collection. • Now, we think, in that case, as in this, there was manifestly such an understanding. There is an *643 other view of that case, taken by the learned senator, in which we cannot concur. He makes no distinction between the neglect of the officers of the bank where the bills were deposited, and that of the bank to which they were transmitted for collection. We think the distinction is obvious. We agree, however, with the learned senator, that the decisive question in such cases is, what was the understanding of the parties, as to the duties the collecting bank undertook to perform. And as to this, we have no doubt of the understanding of the parties in the present case. That was, we think, that the defendants were to transmit the bills, or to cause them to be transmitted, to some suitable bank or other agent in Washington, for collection; and the questions are, whether, in employing the Commonwealth Bank to transmit the bills, the defendants acted in good faith; and if so, whether they are responsible for the failure of that bank. ...” This court in Davis v. First Nat. Bank of Fresno, supra, held that the usage of the bank to send its commercial paper to its correspondent banks for collection was binding upon the customer, even if he was ignorant of the usage and made no inquiries in reference thereto. In that regard the opinion states as follows: “The court should also have permitted the defendant to show by the witnesses, which it called for that purpose, the usage of banks in regard to the collection of paper presented by persons who were unknown to them-, and that the defendant conformed to that usage. (Warren Bank v. Suffolk Bank, 10 Cush. (Mass.) 582.) If such usage was reasonable and did not contravene any principles of law, the fact that the defendant followed it would tend to show that it exercised reasonable care in seeking to collect the draft. One who gives a draft to a bank to collect is held to have an implied knowledge of its usage in collecting drafts, so far as such usage does not contravene any rule of law. (Morse on Banking, sec. 9; Bank of Washington v. Triplett, 1 Pet. (U. S.) 25 [7 L. Ed. 37, see, also, Rose’s U. S. Notes].) ‘The fact that one deals with the bank without taking the trouble to inquire as to its system will raise the implication that he already knows and is satisfied with that system. It is clear that if a person hands over a note to a bank for collection, without any species of remark as to the course to *644 be pursued, the bank is not bound to thrust upon him a statement of its intended course and to retain him until the whole theory has been expounded to him, when his conduct unmistakably shows that either he already knows it, or else he does not desire to know it. Either he knows and approves it, or he voluntarily trusts to the wisdom of the bank at his own. deliberately assumed risk of its sufficiency. In such a case the bank not only has a right to assume, but it is even positively bound to assume, that his desire is that the ordinary and established usage be pursued. ’ ” (See, also, San Francisco Nat. Bank v. American Nat. Bank, 5 Cal. App. 408 [190 Pac. 558].) It follows, then, that an agreement by a bank to remit money implies an agreement to transmit the same through the ordinary banking channels and that such agreement is fully complied with when the bank has exercised due care in the selection of the subagents to which the money is transmitted in the ordinary course of banking business. The implied agreement between the parties was that plaintiff’s money should be remitted by the defendant through the .ordinary banking channels. It was stipulated that such was the actual agreement and the court found as a fact that the money was so transmitted. The complaint, answer, stipulation of facts, and findings of fact, construed together, are to the effect that defendant’s agreement was to remit through the ordinary banking channels. Such agreement would be implied from the written receipt given by the defendant to the plaintiff and set out in the findings. In the findings of fact is a statement that the bank of Milan, Italy, was the agent of the defendant. In view of the fact that the court had already found the facts concerning the relationship between the plaintiff and the defendant and that it followed as a conclusion of law from such facts that the bank of Milan, Italy, was not the agent of the defendant, the statement in the findings that the bank at Milan, Italy, was the agent of the defendant is an erroneous conclusion of law which must be disregarded. The trial court also found that the bank at Milan, Italy, was negligent, but as we have already seen the defendant was not responsible for such negligence if it had exercised due *645 care in the selection of the subagents who were to transmit the money to the plaintiff’s mother at Chiatri, Italy. Judgment reversed. Lennon, J., Myers, J., Tyler, J., pro tem., and St. Sure, J., pro tem., concurred.