Whitehouse v. . Bank of Cooperstown

Gray, C. This case presents but a single question for our .consideration, and that is, whether the mere entry by the book-keeper of the Patehen Bank of a charge upon the journal of that bank, of which Patehen was president, and in which he was a principal stockholder of these five mortgages to Patehen against a credit to him of a larger amount appearing on its books, though the entry appeared as if it was made in the ordinary business of the bank on the day of its date, was unsupported by any evidence that Patehen desired thus to pay the mortgages, or that the bank desired to have them thus paid sufficient to justify a finding that the mortgages were paid. The fact that Patehen was president of the bank, and one of its principal stockholders, did not destroy its individuality. There yet remained two parties to be affected by the entry: one the Patehen Bank, and the other Aaron D. Patehen, neither of whom had the right without the consent of the other to authorize such an entry, and the book-keeper of the bank, unbidden by either, clearly had no right to make it. He, so far as his recollection served him, was without any knowledge as to whether the parties had agreed upon such a mode of payment; Ms only knowledge on the subject was that ■the entry appeared there in his handwriting, but he was destitute of any recollection why it so appeared. He had no right to negotiate or agree for the parties; Ms duty as book-keeper was limited to the entry of what others directed. (Potter, Receiver, v. The Merchants’ Bank of Albany, 28 N. Y., 641.) Hnless, therefore, there was some evidence of the adoption of this entry as well by Patehen as by the bank, the inference that Patehen had in this way paid the mortgages was not justified. What occürred after the entry, instead of affording evidence of acquiescence or adoption, establishes the *243 reverse. On the fifth of the following April, the bank and Patehen both asserting that the mortgages were wholly unpaid, the bank for a full price sold and assigned them to the defendants. The Bank of Cooperstown and Patehen continued to pay the interest upon them. There is a further fact, not without some significance, and that is that the plaintiff, after the lapse of seven years after the making this entry, foreclosed his mortgage, making a large number of persons whom he alleged to be subordinate incumbrancers, parties; omitting to include the defendents, thus affording an inference that these mortgages were, as all parties then understood, unpaid. It is quite unnecessary to pursue the discussion, inasmuch as we may place our disposition of the case upon authority. (Gibson T. Williams and others v. The same defendants, Court of Appeals not reported.) These cases are in all respects alike, except that in the case referred to the mortgage was over due; in this they were not due. This difference in fact fails to make one in principle. The rule of evidence is the same in each case. The judgment appealed from should be reversed and new trial granted, costs to abide event.