Stebbins v. Union Pacific Railroad

Peck J. Stebbins, Post & Co., sued. Their petition alleged that Oyster, Chamberlain and Puller each drew a bill of exchange for $70, on the defendant, in favor of the plaintiff, the bills being severally dated December 22, and 31, 1876, and January 3, 1877; that on the 20th of the same January they were accepted by the defendant, and a part of their amount then paid; that a balance of $95 remained unpaid, for which, and interest from that date, the defendant was indebted to the plaintiffs. The general denial was pleaded. The case was tried in a district court without a jury, and judgment rendered for the defendant. The evidence does not conflict, and by its direct statements and necessary implications, clearly results in the following facts. Oyster, Chamberlain and Fuller, severally drew orders in favor of the plaintiffs, respectively dated as alleged in the petition; that by Oyster, reading, “Pay Stebbins, Post & Co., or order, $70, due me for breaking in the month of December for Fisk, King, Winckers, [77] Betts, Crofforcl and Patterson; deduct $6.50 for one ton of coal;” that by Chamberlain, “Pay to Stebbins, Post & Co., the amount due me for.month of December;” that by Fuller, “Pay to the order of Stebbins, Post & Co., $70, value received, and charge the same to my account.” The form of address on each order being, “Paymaster U. P. R. R.” On the 28th day of October, 1876, one Childs, an express messenger of the defendant, running between Omaha and Ogden, drew an order of that date as follows, addressed in the same form to the paymaster; “ Pay to the order of Stebbins, Post & Co., $95, my salary for the month of October, 1876.” The four orders were received by the plaintiffs in good faith, and for value, the Childs order at its date. The paymaster’s duty was to travel along the defendants’ line in a paymaster’s car, paying its monthly pay-roll, furnished with funds and the roll accordingly; upon his November trip for 1876, he was so furnished, and the roll specifies $95, as due Childs for his October, 1876, salary. On the 28d or 24th of that November, upon the paymaster’s arrival at Cheyenne, the plaintiffs presented the Childs order to him at his car, and he finding nothing against Childs, paid it, took it up, and can-celled it in the usual way, by the defendant’s cancellation marked as paid; this presentation was the first notice to the defendant of the existence of the draft. On November 15, 1876, Childs was paid by the defendant at Ogden, through its express department, $95, for the same salarj^, and left its service, and had afterwards no claim against it; notice of this last-mentioned payment reached the paymaster on December 11, 1876, and afterwards, at Cheyenne, during the month, while on his December trip, he notified the plaintiff of the error in paying the.order. On the 24th day of Januar}1-, 1877, at Cheyenne, upon the trip of that month, the plaintiff sent the three orders, which are in suit by their clerk, to this paymaster at his car for payment; and they were presented' accordingly. The paymaster deducted from $210 the gross of the orders, sundry [78] coal bills, which the defendant held against the drawers, reducing them to $187.35; also, the Childs order of $95, explaining to the clerk the error of paying it, leaving a balance of $92.35; paid this amount to the clerk, returned to him the Childs order, and received from him the other three, at the same time cancelling them, in the usual way, with the defendant’s cancellation, marked as paid. Thereupon, on hearing of the settlement, the plaintiffs called upon the paymaster, notified him of their dissent, tendered a return of $92.35, and demanded a return of the three orders, unless paid in cash in full; he declining, they retained $92.35, under protest; they did not tender a return of the Childs order, but this we treat as an oversight. The plaintiffs proved the orders without producing, or giving notice to produce them, and without explaining their form. They were introduced by the defense, and thus became evidence in support of the general denial. The Oyster and Chamberlain orders were not bills of exchange ; the former because it was not payable absolutely, but out of an alleged indebtedness, and, therefore, upon a contingency; if it would estop the drawer from denying that it describes an absolute indebtedness, it addresses itself to the drawer, as no more than a request to -pay, if due; and the latter, because it is not payable to order, or for a sum certain. The Fuller order is a bill of exchange, it being payable to order absolutely, and for a sum certain; hence the plaintiff can recover if at all, for a balance of this order. But upon the whole case the defendant is entitled to judgment. The office of a travelling paymaster of a railway company, and the appropriate methods of exercising it, are defined in law, and the court will judicially recognize them, fie is sent simply to pay the indebtedness specified upon the roll, and his duty is to pay each debt specified upon it to its owner, whether the party to whom it accrued, or to whom it has been transferred. The roll limits his authority, and he has no power to contract for his principal; therefore, he [79] cannot accept orders drawn upon it, though drawn by the employés, covering simply what the roll specifies as their due, and passed in good faith and for value to third parties. Yet he must pay the orders; therefore, had this paymaster accepted the orders which are in suit, his acceptance would not have bound the company; all that he could do was to pay them. He did not accept, he only paid; kept strictly within his authority, and performed his duty. The omission of the plaintiffs to notify the defendant of the transfer to them of the Childs October salary, subjects them to its loss, protecting tbe defendant, which by the omission was lost in the understanding that Childs still controlled it. As between two innocent parties, that one who has been guilty of laches must suffer the wrong of a third. Thus the defendant, having discharged its indebtedness for the Childs salary by the payment of November 15th, and the Childs order having been paid on November 28d or 24th, without consideration and by mistake, the $95 paid upon it became so much money received by the plaintiffs t® the defendant’s use, for which the former were accountable upon demand. Upon the presentation of the three other orders, the paymaster finding $187.35 to be the balance due upon them, after deduction of the coal bills, and the $95 already in their hands, properly applied that sum upon them, paid the residue, $92.55, took up and cancelled the instruments, returning the $95 order as a voucher belonging to the plaintiffs ; in so doing his action being that of the defendant as his principal, and his own as its agent. In one particular he acted short of his duty; he should have charged the plaintiffs two months interest upon the $95, and paid them so much less than $92.85. Our construction of the matter is not influenced b3r the fact that the plaintiffs’ clerk assented to the adjustment, for the assent was unnecessary to the defendant’s right, and the paymaster’s duty; nor is it influenced by the fact that the plaintiffs in connection with their notice of dissent, did not tender back the Childs or80 cler, for if they had, the paymaster’s duty would still have been to adhere to the adjustment. The judgment is affirmed with, costs; the five per cent, applicable to dilatory appeals not to be added. Judgment affirmed.