Sankey's Executors v. First National Bank

Mr. Justice Williams delivered the opinion of the court, October 14th 1875. This was an action of assumpsit to recover the premium on certain United States bonds or certificates belonging to the plaintiffs’ testator. The declaration contains only the common counts for goods sold and delivered, and for work done, &c. Upon the evidence given by the plaintiffs, and their theory of the case, they were not entitled to recover under any count in the declaration. .They denied that they had sold the bonds to the bank, in which they were deposited for safe keeping, but alleged that they had been induced, by the false and fraudulent representations of the cashier, that the bonds had been shipped, and that there was no premium on them, to accept a certificate of deposit for the amount due on their face with the accrued interest; and that having learned within a day or two thereafter that the bonds were'selling at a premium of six to six and a-half per cent., they took the certificate to the bank and demanded the bonds, but the cashier refused to deliver them or pay the premium. It was denied, on the part of the bank, that the plaintiffs had been induced to accept the certificate of deposit in lieu of the bonds by any false and fraudulent representations of the cashier; but it was alleged, and the testimony of the cashier, if believed, showed that he had purchased them of the plaintiffs for the bank in good faith for the amount due on their face, with the accrued interest, not knowing that the government had extended the time for their conversion, and that in consequence thereof they were'selling at a premium; and that-instead of paying Jacob Sankey, the executor from whom the purchase was made, the money therefor, he had given him the certificate of deposit, which was afterwards paid by the bank, because he said that it would answer his purpose the same as money, and he did not feel safe in carrying that [55] amount of money through “the Narrows.” The court instructed the jury, in substance, that if the plaintiffs had been induced by the false representations of the cashier to accept the certificate of deposit in lieu of the bonds, they were entitled to recover the premium for which like bonds were then selling, but that if the cashier had purchased them for the bank in good faith, not knowing that the time for their conversion had been extended, and that they were selling for a premium, the plaintiffs were not entitled to recover. The finding of the jury, under the instructions of the court, establishes the fact that the bonds were sold by the plaintiffs and purchased by the cashier in good faith, and that the latter was not guilty of any fraud or unfair dealing in making the purchase. The plaintiffs now contend — and it is the only point in the case, if such it can be called — that if there was a mutual mistake by both parties in reference to the premium on the bonds, which was discovered before either was in any way prejudiced, that the plaintiffs were bound to deliver up the bonds on demand or pay the premium ; and that the court erred in not so instructing the jury in answer’ to their fourth point. But if there was no fraud in the sale of the bonds, it needs no argument to show that this is not the law. If the bonds were purchased, in good faith, for the amount due on their face, the sale cannot be regarded as invalid, because bonds of the same issue were selling at a premium in New York and Philadelphia, and had a speculative value unknown to the parties. If this were the rule there would be no certainty in the sale of government and other securities, unless sold at the stock- boards, or in the money markets of the great centres of trade. The mistake or ignorance of the parties in regard to the premium was not of the essence of the contract, or its procuring cause; and if so, it did not avoid the sale. The only error that we discover in the trial of the case, was in instructing the jury that there could be any recovery under the pleadings and evidence, and in allowing the plaintiffs to recover the premium on the bond that was not -due and convertible, but of this they do not complain. Judgment affirmed.