Bank of Indian Territory v. First National Bank

BBOADDUS, J. The facts of the case are as follows : On the 24th day of February, 1903, one H. H. Hagan, of Guthrie, Oklahoma Territory, drew a sight draft on Kemper, Bowman & Hillix payable to the order of plaintiff for the sum of seven hundred dollars. On the same day, plaintiff received the draft at Guthrie, where it did business, and credited Hagan with the full amount of $700, and indorsed and forwarded it through its correspondents to defendant bank in St. Joseph, Missouri, for presentation and payment. On March 3, defendant presented the draft to the drawers, who gave their check for its payment. Defendant at the same time accepted the check, stamped the draft paid and surrendered it to the drawees, and gave the Union National Bank of Kansas City, from whom they received the draft, credit for its amount. On the next morning - — March 4 — the drawees informed defendant bank that a newspaper had reported that morning that the drawer, Hagan, had killed himself, and they asked defendant if it could do anything to help them to hold the money, and stated that they had not received the cattle on which the draft had been drawn. Whereupon, defendant’s agent told the drawees that it would assist them in the matter, and did telephone to Kansas City in reference to its payment. The defendant then presented the check it had received in payment of the draft to the — 670 — Stock Yards Bank, upon which it was drawn, and payment was refused, the drawees in the meantime having stopped its payment. Afterwards, on the same day, defendant surrendered the drawees’ check, took hack the draft, protested it for non-payment, and returned it to plaintiff. The drawees were live stock commission merchants at St. Joseph. Hagan had on prior occasions shipped them cattle and drawn drafts upon them which they had paid. Upon the occasion in controversy he wrote them a letter stating that he had shipped two cars of steers and had made a draft on them for $700. On the day the draft was paid they wrote Hagan as follows: “Your draft came in to-day, but no cattle in sight. We paid your draft as we thought the cattle had been delayed some way. If the cattle are not in to-morrow we will make sight draft on you for amount, but think certainly will get in to-morrow,” etc. On March 4 Hagan died without having shipped any cattle to drawees. The plaintiff paid out on checks drawn by Hagan against the credit for said draft $674.42. There was evidence to the effect that the president of plaintiff bank had some suspicion of Hagan’s honesty and called the attention of its other officers to that effect, but it appeared that he was absent on the day the draft was made, and Hagan got credit. The judgment and finding were for the defendant from which plaintiff appealed. The conceded rule of law is that, if a bank receives a draft for collection and takes in payment a check from the party who is bound to pay such draft, and surrenders the same to him, such collecting bank is liable to its principal for the amount of the check, as an agent authorized to receive money has no implied power to receive a check in payment. [Bank v. Bank, 151 Mo. 329.] And it is admitted that if the drawees had accepted the draft they would have been liable, for the effect of an acceptance is to constitute the acceptor the principal debtor; and if the drawees were — 671 — liable plaintiff was entitled to recover. 1 Daniels on Neg. Inst., secs. 480, 532, 534. Bnt respondent insists that there is a difference between the payment and acceptance of a bill; and that payment never operates as an acceptance — that the effect of the former is to extinguish the bill and the latter is an admission that the drawee has in his hands funds of the drawer. To support the theory that a payment never operates as an acceptance we are cited to the case of Bank v. Whitman, 94 U. S. 343. It was there held that “a payment to a stranger upon an unauthorized indorsement does not operate as an acceptance of a check, so as to authorize an action by the real owner to recover its amount as upon an accepted check.” It is hardly perceivable how the holding could have been otherwise as the indorsement was without the owner’s authority and consequently as such created no privity of contract between the drawer and drawee. The court did not hold that a payment was not equivalent to an acceptance, but that under the circumstances it was not, because the payment itself was unauthorized. Under the statute, “no person within this State shall be charged as an acceptor of a bill of exchange unless his acceptance shall be in writing signed by himself or his lawful agent. ’ ’ An acceptance as provided by the statute binds the acceptor to pay the bill, and he can not be heard to deny that he has funds in his hands for the purpose. A payment of a bill is more than an acceptance, for the one is an obligation to pay, the other a discharge of the indebtedness represented by such bill. An acceptance' is an admission that the drawee has the funds in his hands to pay; a payment is also such an admission and, in addition, a discharge of the debt. If the one concludes the drawee it is inconceivable why the other would not. And it is no defense that the drawees were mistaken in supposing that they would have funds in their hands to pay the bill. A mistake of this kind would not relieve them. Bank — 672 — v. Bank, 107 Mo. 402, was a case where the draft was drawn on the plaintiff bank who paid it supposing the signature of the drawer to be genuine while in fact it was a forgery. Plaintiff was denied the right to recover on the ground that the law conclusively presumed that the drawee knew the signature of the drawer. And 1 so it was held in Bank v. Allen, 59 Mo. 310; Stout v. Benoist, 39 Mo. 277; Hoffman v. Bank, 12 Wall. (U. S.) 181; Goetz v. Bank, 119 U. S. 551. The principle of these cases applies to this, as there can be no reason advanced to the contrary. But respondent insists that law and right will not. compel defendant or said commission company to pay the debt as the loss was the result of the negligence of plaintiff. But does the evidence show such negligence! Does the mere fact that plaintiff’s agents had a suspicion that Hagan, the drawer of the bill, was not an honest man prove negligence! We think not. The law is that where the bill has passed to the plaintiff without any proof of bad faith in him there is no objection to his title. “Merely putting a party about to purchase negotiable paper upon inquiry is not per se sufficient, nor is gross negligence.” [Edwards v. Thompson, 66 Mo. 468.] And, “the rule that ‘a purchaser is not an innocent holder if there are circumstances connected with the transfer sufficient to put an ordinarily prudent man on inquiry, ’ is uncertain and devoid of uniformity, and no longer the prevailing law of this State." [Hamilton v. Marks, 63 Mo. 167.] And “mere circumstances sufficient to put a prudent man on inquiry is not sufficient.” [Inv. Co. v. Fillingham, 85 Mo. App. 534.] “Ordinarily, one will be charged with notice of a fact who possesses information which puts him upon inquiry, and which, if followed up with diligence, will lead to the ascertainment of truth.” But such rule does not apply to negotiable commercial paper. [Jennings v. Todd, 118 Mo. 296.] Respondent’s final contention is that there was no — 673 — evidence that plaintiff was the owner and holder of the draft. The evidence shows that plaintiff was the original owner and holder, and it made the following indorsement on the draft: “Pay to any hank or hanker or order, all previous indorsements guaranteed.” The next indorsement was by the Fourth National Bank of Wichita, Kansas, and was as follows: “Union National Bank of Kansas City, Mo., or order; previous indorsements guaranteed.” The latter indorsed it as follows: “Pay order of any bank or banker; all previous indorsements guaranteed,” and sent it to defendant who in its answer alleges that it protested the same and returned it to plaintiff. The defendant claims that the said indorsements places the title to the bill in the Union National Bank of Kansas City, therefore plaintiff was not the owner of the bill. An indorsement of a bill for collection is not a transfer of the title of the instrument to the indorsee but merely constitutes him the general agent of the indorser to present the paper and receive payment and remit the proceeds. [Eaton & Gilbert on Com’l Paper, 329.] As a rule, the title of a negotiable instrument passes by an ordinary indorsement, whether special or general. [Idem, 318.] And if the indorsee holds the instrument merely as an agent, the agency may be annulled at the pleasure of the indorser. [Idem 330.] The indorsement of plaintiff “to pay to any bank or banker or order” was not such an indorsement as to pass the title to the bill. It merely authorized any bank or banker into whose hands it might come, to collect and remit the proceeds. In other words, it was only authority to collect: therefore a restrictive and not an unconditional indorsement passing the title. We think this is clear. The title remained in the plaintiff and no subsequent indorsements could affect such title. The defendant insists- that justice is clearly with it. That may be true. But the Supreme Court of this — 674 — State in speaking of hardships of particular cases arising under the law governing commercial paper said: “We need not inquire now whether the rule we lay down he the best or not. ... It may, like all general rules, work occasional hardships, but considerations of convenience and public policy imperatively demand that it be not changed to do what the judge may deem equitable in a given case. The best interests of the commercial world require stability and fixedness in commercial law.” We have endeavored to ascertain and apply the general rule of commercial law applicable to this case; with some misgivings, it is true, of the hardship imposed upon defendant which, in ordinary cases, would have strongly appealed to the conscience of the court, and which, but for the rule, perhaps, might have influenced a different result. The case was tried before a jury. Among others, plaintiff asked the court to instruct the jury to find for the plaintiff, which the court refused. This was error as under all the evidence, there being no conflict in the testimony whatever, the finding should have been for plaintiff. The cause is reversed with directions to enter judgment for plaintiff for the amount of the draft with interest from date of demand of payment from defendant. All concur.