Kinne v. Ford

J. F. Barnard, J. The great question for the jury in this action, was, the delivery of the $10,000 check by Carver, one of the plaintiffs, to Coddington, the clerk of the defendants. If the evidence admitted by the court upon this issue was proper and there was no error in the charge of the judge, the finding of the jury cannot be disturbed on appeal to this court. The witness Carver, who testified to the delivery to Coddington of the check in question, fixes the time of such delivery at nearly a quarter past 2 p. m. on the 20th January, 1865. On his cross-examination he testified that he took no receipt for the check, and did not get the defendants’ check for the amount of the gold draft which he had delivered. To meet the effect of this fact with the jury on this question of delivery or non-delivery of the gold check in question, the plaintiffs were permitted by the judge to prove that other persons who were late in their delivery of checks payable in gold were sometimes accustomed to leave the checks and take no' check for currency in payment until afterwards. I think this was error. The witness Carver knew of no such custom, had delivered no gold check before this one as he could remember, and did not pretend that this custom was the reason of his taking no check for the one he delivered. The question was, did he deliver this check in the [197] manner and at the time he testified he did. • It was not legitimate or proper evidence upon this issue that persons about whose deliverances of. stock no question is madé, were sometimes accustomed to deliver checks and received neither evidence nor payment, when such custom- was neither known to the witness nor stated by him as a reason why he omitted to take either receipt or payment. [New York General Term, November 2, 1868. I think the judge erred also in his refusal to charge the jury, as requested by the defendants, “ that the leaving of the check upon the counter or desk without Coddington’s knowledge was not a delivery, unless it was actually received by him or the defendants.” Delivery was the transfer of the possession of the check in question, with ihe intent to transfer the title by. the plaintiffs to the agent of the defendants, and the acceptance, by such agent, of the check for his employers with the intent to receive such title. It is a thing in which both, parties must join. The minds of both parties-must concur. Instead of charging the undeniable proposition as requested, the judge charged that “ if the defendants put a deaf man there or a stupid man, or any other circum- " stances which prevented him from paying that attention which an ordinary prudent man would pay, and he did not hear Mr. Carver if he did speak to him, that is the misfortune of the defendants.” I do not deem this the law. If the clerk, for any reason, did not consent to the delivery of the check, either from mental infirmity or lack of attention, or any physical incapacity, there was no delivery to him in law. He must have been capable of, and have assented to, the act at the time he is alleged to have done it.' For these reasons I think the judgment shouldbe reversed and a new trial granted; costs to abide the event. /. F. Barnard, Ingraham and Midlin, Justices.]