Crouse v. First National Bank

Gray, J. We think the reversal of the judgment was right. 'The facts disclosed by the evidence did not make out a case of negligence; nor did they show that the plaintiff’s firm had suffered any damage by reason of anything on the part of the bank. The evidence was wholly insufficient to support the referee’s findings in those respects. As we read this record, no inference was permissible from the evidence that the bank had failed in any duty towards the plaintiff’s firm. The draft in question was merely a convenient mode adopted by the firm of Crouse & Walrath to collect a portion of a debt due them from Dinehart, and the defendant hank was made their agent for the mere purpose of collection. Dinehart lived in the country, at some distance from Penn Yan, and, as it was testified to without objection, the custom ■of the bank in that place, where they held drafts upon parties residing in the country, was to notify them by mail; unless •especial instructions were given to present the paper, in which •case a notary would be employed. Here, the plaintiff’s firm had expressly waived protest of the draft, and there was no requirement for presentment by a notary, or for any extraordinary course with respect to it. There was no question in the case of holding other parties, and there was nothing in the relations of plaintiff’s firm with the defendant, which made it incumbent upon the bank to exercise other than that usual and •ordinary diligence in the performance of the duty of the assumed agency, which the circumstances called for. The plaintiff’s firm were notified by letter of the draft being payable in the following week, as the best that Dinehart could do .about it; their clerk was sent to inquire about it, and the draft was not only left with the bank with no further instructions *388 about it, but, on March third, they wrote, asking if Dinehart had made arrangements to pay the draft, and thus recognizing and tacitly ratifying what the bank had done. FTot only was the bank not bound to do more than it had done, but it is difficult to see what more it could have done. It was without especial instructions, and the plaintiff’s firm were sufficiently apprised of the situation to make it incumbent upon them to further instruct the bank, if they desired it to do more. Knowing of the nonpayment of the draft, it behooved them to act in the matter for their own interests. The strict rules which usually are applied with respect to commercial paper, in matters of presentment, demand and notice, do not apply to such a case as this ; as the General Term very correctly observe in then opinion. The defendant acted as the plaintiff’s agent to collect a part of a debt, and, in view of the circumstances and with the knowledge chargeable to the principal as to its con- ■ duct of the matter, it could not be inferred from the evidence that it was guilty of any negligence in the discharge of its duty. It may be added that there was an utter lack of evidence to afford a presumption of damage to the plaintiff’s firm from the conduct of the defendant. FTo inference was possible from the evidence that there was a reasonable probability that the debt would have been paid, if Dinehart had been pressed for payment, from the time when the draft was presented until he assigned. - The order appealed from should be affirmed and judgment absolute ordered for the defendant on the stipulation, with costsain all the courts. All concur. Order affirmed and judgment accordingly.