Dearborn v. Union National Bank of Brunswick

DickbRson, J. Assumpsit to recover the value of one $500 and two $100 “five-twenty” U. S. bonds. The writ contains four counts, some of them alleging that the bonds were left with the bank, by the plaintiff, as secuiity for his note, with the formal averments of a breach of the contract, and the others that they were deposited as a gratuitous bailment. The cause was submitted to the jury upon these two grounds, the one requiring the defendant to exercise ordinary care, and the other holding him to the observance of slight care only in respect to keeping the bonds. It appeared in evidence that the bonds were in the bank as collateral security in July, 1865, and that subsequently to that time the plaintiff had notes discounted at the bank, using these bonds as collateral securitv. There was evidence tending to show that in October, 1867, the plaintiff had a five hundred dollar note discounted at the bank and used the $500 bond as collateral security therefor; that that note was renewed, and the renewal paid in May, 1868 ; that the bond was seen in the bank at that time, and the plaintiff toid the cashier to put it with his other bonds. There was, also, evidence tending to show that on the first day of July, 1868, the plaintiff had an $800 note discounted at the bank, and that the bonds were held by the bank as collateral security for that note; and there was testimony tending to show that other security was taken for the $800 note. There was no evidence that either of the bonds was seen in the bank at that time, but there was evidence that, in answer to the inquiry of the cashier as to what the security for the $800 note was to be, one of the directors of the bank,"then present, replied, “Mr. Dearborn has bonds here;” and upon the cashier looking into the boxes kept for the deposit of bonds without finding them, the same director added the remark, “ they must be here, for Lhave seen them within a few- days.” Among other appropriate instructions, the court instructed the [373] jury that they were to ascertain whether the bonds were in the bank when the $800 note was negotiated on July 3, 1868. The jury must have understood that this was a necessary prerequisite to the bank holding them as collateral security for that note. The counsel for the defendants requested the court to instruct the jury that “if the bonds were not found by the bank when the note of July 1st was offered, aud were not afterwards found, tlie jury were not authorized to find that they were taken and held by the bank as collateral security for that note.” The requested instruction was refused. Tlie question for the jury to determine was not whether the bonds were found in the bank on those occasions, or either of them, but whether they were actually there on the first day of July, when the $800 note was negotiated. If there at that time, though not then or subsequently found, they might have been held as collateral security for that note. The instruction asked for assumes that the bonds could not have been in the bank on the 1st of July, for either of the purposes claimed, if they were not then or afterwards found there, a non sequitur. If the bonds were actually in tlie bank at that time they might have been taken and held by it either as collateral security or a special deposit, though not then or afterwards found; there was no necessity of a manual tradition of them at that time by the plaintiff to the hank for either of those purposes. There ivas no evidence in tlie case that the bonds were found in the bank either on the 1st of July or afterwards. To have given the requested instruction, therefore, in effect would have been to instruct the jury that they were not authorized by the evidence to find that the bonds were in the bank on the first day of July, and not being there then, they could not he taken and held as collateral security on the $800 note, as claimed by the plaintiff. This would have been to foreclose the question of fact, in issue before the jury, whether the bonds were held as collateral security for the note; under the instruction requested the jury could not find that fact in favor of the plaintiff, though the evidence should [374] authorize such finding. The requested instruction was very properly refused. The testimony of the assistant cashier of the bank, as to other bonds having been mislaid or lost in the bank and subsequently found there, was admissible to show the manner in which the business of the bank was conducted in that respect, and as bearing upon the question of care. We see no sufficient ground for setting aside the verdict as against evidence. There was positive evidence that the bonds were deposited with and demanded of the bank, and there was no evidence that they had been returned. Whether they were left as collateral security, or a special deposit without compensation, was a question of fact for the jury alone to determine, as was, also, the degree of care actually exercised by the bank in keeping them, under the plenary instructions received from the court. Whether the jury predicated their finding upon the one or the other theory of the plaintiff as to the character of the bailment does not appear; nor is that material since there was evidence applicable to both. Motion and exceptions overruled. Appleton, C. J.; Cutting, Daneorth, Virgin, and Peters, JJ., concurred.