King v. Bowling Green Trust Co.

Miller, J.: On June 20, 1907, the Congregational Church Building Society drew its check on the Mercantile Trust Company of New York for $2,500, payable to the Fourth Congregational Church of San Francisca. The latter opened an account with the California Safe Deposit and Trust Company on September 80, 1907, and on October 24, 1907, the treasurer deposited said check, together with $17.95 in currency, with the said trust company and was credited by the latter with the sum of $2,517.95. The check with other items aggregating $6,473.47 was sent “ for collection and credit” to the defendant and was received by it on the morning of October 30, 1907. The defendant forthwith credited said amount to the California Safe Deposit and Trust Company and on that day presented the check, with other items, to the Mercantile Trust Company and received in payment the latter’s check, drawn on the National [400] Bank of Commerce, which, on that day was deposited with the drawee and by it credited to the account of the defendant. At two-fifteen p. m. on said day, San Francisco time, and at five-fifteen' p. m., New York time, after the close of hanking hours, the California Safe Deposit and Trust Company closed its doors, but the defendant did not learn of that .until the following morning. This suit is brought by the plaintiff' as assignee of the Fourth Congregational Church of San Francisco to recover the amount of said check, with interest. Said check, when deposited, was indorsed in blank and the person who deposited it in behalf of ■ the payee testified that no instruction Vas given the California Safe Deposit and Trust Company at the time. On the pass book delivered to the treasurer of the said church society when the account was opened was the following: “ This barfk iñ receiving out .of town checks and other collections, acts only as your agent and does not assume any responsibility beyond due diligence on its part, the same as on its own paper,” and on the deposit slip, upon which was entered the said deposit of $2,-517.95, was the following: “ In receiving checks on deposit, payable elsewhere than in San Francisco, this bank assumes no responsibility for the failure of any of its direct or indirect collecting agents, and shall only be. held liable when proceeds in actual funds or solvent credit shall have come into its possession. Under ■ these conditions items previously credited may be charged back to the depositor’s-account. In making this deposit the depositor hereby assents to. the foregoing conditions.” There had been mutual and extensive dealings between the defendant and the California Safe Deposit and Trust Company for some time prior to the transaction in suit. The latter had a checking account with the former and was accustomed to send to it bills for collection and credit in two ways: a, by a so-called cash letter; b, by a so-called collection letter. The two differed onlyin.this, that the latter contained the following, not found in the former, viz.: “Credit only when paid and report by number- or date. Deliver documents only on payment. Do not hold our collections, but return promptly if not honored. ” The check in questipn, with others, was transmitted with a. cash letter. Another cash letter, was also [401] received by the defendant from the California Safe Deposit and Trust Company on October 30, 1907, containing an item on Chicago for $12,500, -which, however, was not credited because of the fact that it was drawn on an out-of-town bank. Of course, the defendant, upon receiving bills for collection, whether transmitted with a cash or a collection letter, was not obliged immediately upon their receipt and before collection to credit them unless it chose to do so. The defendant did not maintain a checking account with the. California Safe Deposit and Trust Company, but it sent bills to the latter for collection. On the morning of October 30, 1907, the checking account of the latter with the defendant was overdrawn $9,645.35. During that day the defendant, in due course of business, paid or certified drafts drawn on .that account amounting to $8,392.54, and it sent bills for collection amounting to $293.80. The California Safe Deposit and Trust Company was indebted to- the defendant on that day to the amount of $92,478.56 on bills which had theretofore been sent to it for collection, and at the close of business its checking account with the defendant was overdrawn in the sum of $7,069.08. While the deposit of a bill or check in the ordinary course of business, the depositor receiving a credit against which he can draw, has the éffect of transferring the title (Briggs v. Central Nat. Bank of N. Y., 89 N. Y. 182; Metropolitan Nat. Bank v. Lloyd, 90 id. 530; Cragie v. Hadley, 99 id. 131), I do not think that was the effect of the original deposit involved in this cases The words on the deposit slip must be read into the contract. If title had at once passed to the California Safe Deposit and Trust Company, it would have had • recourse to the depositor only in case the' paper was dishonored, but by its contract it assumed no responsibility until it had received actual funds or solvent credit. Up to that time it was, then, merely the agent of the depositor. However, the check was actually credited by the defendant and paid by the drawee during banking hours on the thirtieth of October. The California Safe Deposit and Trust Company, then, had received and accepted solvent credit for the check before it failed, and its relation to its depositor had changed from that of agent and principal to that of debtor [402] and creditor. The precise form, of the letter of transmittal is immaterial. The check was sent “ for collection and credit,” and it was collected and,credited on October 30, 1907. Moreover, the defendant was a bona fide holder for value. While the learned trial court submitted to the jury the question whether the defendant had notice that the check belonged to the customer of the California Safe Deposit and Trust Company, there is no evidence in the case that it had such notice, and the undisputed evidence shows that it did not. Dor anything that appeared on the paper, and that was the only thing to give the defendant notice, the California Safe - Deposit and Trust Company was the owner of it. It was not to be presumed that the check was originally deposited only for Collection, as the cases hereinbefore cited show. Of course-it is impossible to say that the defendant did anything upon the faith of the said trust company’s ownership which it would not otherwise have done. However, because of all the mutual dealings, of which that was a part, it suffered a general balance in its favor to remain and it paid and certified checks. Prior to the passage of the Negotiable Instruments taw (G-en. Laws, chap. 50; Laws of 1897, chap. 612; -Consol. Laws, chap. 38; Laws of 1909, chap: 43), and from the time of the decision of Coddington v. Bay (20 Johns. 637), it was the law of this State that in order to constitute one a holder for value as against. a true owner it was necessary that he part with some present consideration. A, different rule prevailed in the Federal courts, and in many of the States. (Vide Bank of the Metropolis v. New England Bank, 1 How. [U. S.] 234; 6 id. 212; Wood v. Boylston Nat. Bank, 129 Mass. 358.) The Negotiable Instruments Law provides: “% 51. What constitutes consideration. Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value, and-is deemed such whether the instrument is payable on demand or at a future time. § 52. What constitutes holder for value. Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time.” While no case in this State on the point has been called , to our attention, it seems plain that those sections [403] were intended to bring the law of this State into harmony with that of the other States and of the Federal courts. If the depositor had indorsed the check “for collection ” a different question would be presented. The judgment and'order should be reversed and a new trial granted, with costs to the appellant to abide the event. Ingraham, B. J., Clarke, Soott and Dowling, JJ., concurred.