President of the Merchant's Bank v. Bank of the United States

The opinion of the court was delivered by Gibson, C. J. There is a' rule which disposes with perfect and [322] unquestionable justice of every loss, which must be borne by one of two or njore innocent persons, by assigning it to him whose act was the cause of it. Both parties here are blameless; and the question is, whether the act of the one or the other contributed more to produce the stale of things, which renders a loss by one of them inevitable. The facts are, that at the time of the transaction they stood in the relation of debtor and creditor; and that to answer the convenience of thé former, the specie given in payment, was drawn from three other banks instead of its own vaults. It was contained in boxes taken at the tale of those banks, by the defendants in the first place, and afterwards by the plaintiffs, whose agent had an opportunity and every necessary facility to tell the money fo.r himself, but omitted to do so ; so that according to the custom in such cases, the boxes were delivered and received by common consent, without a particular examination of their contents: consequently, it is unnecessary to decide the vexed question, whether it be the business of the party paying, or the party receiving, to see that the money -is right. There was a tacit agreement to deliver and receive the boxes, according to their nominal amount; and though an agreement founded in mutual mistake of a fact which was the inducement to if, be not usually conclusive, where it is not explicitly understood that the parties are respectively to take the risk of the fact as being in a particular way, it certainly is otherwise where the consequences of unravelling the transaction, would put the opposite party in a worse situation than if the agreement had not been made. The creditor requiring a review of the transaction, to ascertain the amount actually paid, must be able to show that the debtor cannot possibly be prejudiced in this respect. How he is to show it, is not the question here, where he has shown, on the contrary, that the defendant would suffer an irretrievable loss from the plaintiff’s own act in confounding the contents of the boxes, and thereby rendering it impossible to fix the deficiency on any particular one of the banks from which the boxes were procured. By the plaintiffs’ own showing, then, the act which rendered the loss inevitable, was done by its own agent. In putting- the cause to the jury, the judge laid particular stress on the agent’s supposed knowledge of the circumstances. That would undoubtedly strengthen the case, as it would be a species of bad faith, knowingly to deprive the defendant of the means of recourse to another for the deficiency, and at the same time to insist that the defendant should make the deficiency good; but it was not an essential ingredient. Between parties equally innocent, and consequently equally meritorious as to every thing else, the personal responsibility for the act which led to the loss, is sufficient to turn the scale, for the reason, that every man should bear the consequences of his own acts, just as he should bear his own misfortunes. The case then, as it appeared on the evidence, and clearly as it was put to the jury by the court, was one on which the plaintiffs could not recover. Judgment affirmed.