Keyes v. Bank of Hardin

Gill, J. — From the foregoing statement it will be noticed that the controversy on the facts is about this:' Plaintiff claims that her husband, acting for her, left the Dorsey note with the bank for collection, and with the understanding that when collected the $350 should be paid over to her, and the $48 to be paid to King. "While defendant contends, -that the note was received (as a kind of special deposit) from King, and not from the plaintiff, and that King all the time controlled the paper, and, hence, a surrender thereof to him was entirely proper. On these two theories of fact the trial court, of its. own motion, instructed the jury as follows: “1. If the jury believe from the evidence that Sallie O. Keyes, by Thomas H. Keyes, • her husband, deposited in the Bank of Hardin the note for $400 read in evidence, executed by L. E. Dorsey and Ed. Dorsey, and payable to the order of James King, and that said bank agreed with said Thomas H. Keyes, as agent for said Sallie O. Keyes, to collect said note and pay plaintiff the sum of $350 and the remainder to James King, and believe that said bank afterwards turned over said note, without authority from plaintiff, to said James King, who collected the same, and that the sum of $350 was thereby lost to plaintiff, then the jury will find for the plaintiff in the sum of $350. [329] “2.. But if the jury find from the evidence that James King had an interest in said note, and that he refused to indorse said note to plaintiff and to relinquish his control of the note until the amount coming to him out of said note was paid, and that James King turned said note over to said Bank of Hardin, and took a receipt therefor in his own name under an arrangement by which, if the money due on the note was paid into the bank, the sum of $350 was to be held by the bank for plaintiff, then the said King had a right to withdraw said note from the bank, and, if he did so before it was paid, the jury will find for the defendant.” The jury under these instructions rendered a verdict for the plaintiffs. Unless, now, it shall otherwise appear from some technical objections' urged by defendant’s counsel (and which we shall hereafter notice), it becomes our plain duty to affirm this judgment. The foregoing instructions presented to the jury in a clear and concise manner the two sides of the case on its merits. There was substantial evidence to support the respective claims of both plaintiff and defendant; and, hence, we must abide the finding of the jury, and declare with the verdict the case to be that as detailed in plaintiffs’ evidence, to-wit: That plaintiffs, holding the note in question, placed the same with defendant for collection, and that defendant without authority of the plaintiffs gave the note over to King, and that thereby the interest of the plaintiffs therein (to-wit, $350) was lost to them. Defendant’s counsel suggests that the court’s first instruction was erroneous, in that it did not submit to the jury whether or not Mrs. Keyes, the plaintiff, was the owner of the note she deposited with defendant for collection. That was .unnecessary since plaintiffs’ [330] interest was practically admitted. That Mrs. Keyes had an interest to the extent of $350 in the proceeds of the Dorsey note, was undisputed and undoubted under the evidence, and the court, therefore, was fully justified in assuming that fact. It is further contended with some show of sincerity that before plaintiffs could recover they should have alleged and shown that defendant undertook the custody and collection of the note for a consideration. In answer to this position, it is only necessary to say, that, in so far as concerns this particular controversy, it is wholly immaterial whether defendant was to hold the note and make the collection with or without compensation. This is not a suit for a failure to collect as agreed, but is an action for conversion. The defendant had the custody of a valuable security belonging to the plaintiff, and it was wrongfully given over to another by reason whereof the plaintiff lost her interest therein. Whether defendant was holding the same as a bailee for reward or as a gratuity, its liability for plaintiffs’ loss was the same under the facts and circumstances as found by the jury. A gratuitous bailee is liable for such a degree of negligence as was this; and this too whether it was a general or special deposit. 1 Morse on Banking [3 Ed.] secs. 194-196. Further objection is made that the defendant banking corporation had no power or authority to receive the note for collection, and, hence, is not bound in this action. This contention, too, is without merit. Admitting the rule to be as claimed by counsel, that corporations have only such powers as are expressly or impliedly given by their charters or acts of incorporation, and yet there can be no doubt as to the necessary authority in this bank to receive and collect commercial paper for its patrons. It is not so named nor denied in its charter, but is necessarily [331] implied from the character of its business. The defendant was organized to, and was in the conduct of, a general banking business; and within the limits of that business the receiving on deposit and for collecting commercial paper is by the common understanding part and parcel of such business. “In addition to the powers given in the charter, all powers necessary for the carrying out of those express powers are impliedly given, and the courts are liberal in construing charters so as to include them.” Lawson on Rights & Remedies, sec. 371; 2 Beach on Private Corporations, sec. 385. “Power to make collections upon business paper is incidental to the banking business, and need not be expressly conferred.” 2 American & English Encyclopedia of Law, p. Ill, and cases cited. Upon a thorough review of every point made, we discover no reason for disturbing this judgment, and it is, therefore, affirmed. All concur.