Coal & Iron Nat. Bank of New York v. Suzuki

HOUGH, Circuit Judge (after stating the facts as above). Obviously Suzuki could not recover upon all of the pleaded causes of action. The denial of motions to dismiss all but one of the causes of action must have been error; but, both parties having finally moved for a directed verdict, both are concluded by whatever finding the court made. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654. To the same effect, Bank of the State v. Southern Bank, 170 N. Y. 1, 62 N. E. 677. In favor of the verdict, therefore, it is the duty of this court to sustain the judgment if, upon any view of the testimony, a verdict could have been rendered productive of the judgment below and consonant with any .one of the causes of action. The plaintiff evidently brought this action at law upon some kind of a contract imposing some pecuniary duty upon the bank in favor of Suzuki. Therefore one first asks: Did the bank have any contract of any kind with Suzuki 9 Upon this point a question of fact was presented, which should have gone to the jury, but which both parties avoided by moving for a directed verdict. That, question is whether the story of Suzuki’s clerk or that of the bank official as to what happened on September 20th was the truth. If the bank’s story was true, then the moment that Suzuki’s elerk? duly authorized, handed back to the bank its letter of September 17th, and said it was not satisfactory, Suzuki (the offeree) had met the bank’s offer with a counter demand — a demand from which Suzuki never receded, and to which the bank never acceded; therefore there was no contract. But, if the story of Suzuki’s messenger was true, then the of-feree might be thought to have positively and unequivocally accepted the bank’s offer, no matter whether the request for an additional clause was granted or refused. Williston, Cont. vol. 1, § 79. This is plainly a question that a jury might have answered either way; for the return of the letter as unsatisfactory was most persuasive of no contract (American, etc., Co. v. Mosko-witz, 159 App. Div. 382, 144 N. Y. Supp. 532); whereas, if the letter was pronounced satisfactory, that fact plus the bank’s subsequent letter writing was persuasive that a contract had been formed. In favor of the verdict we must hold that the court below found a contract; i. e., whatever, contract can be spelled out of the letters of September 17th, 22d, and 26th. Here it makes no difference what kind of a contract the offeree (Suzuki) intended to accept; for such intention is wholly immaterial, except as it is expressed at the time of acceptance. Williston, Cont. vol. 1, § 66. Considering these letters, it is plain there never was a contract such as is set forth in the first and second causes of action, for never at any time did the bank agree with Suzuki, not only to hold a certain sum of money on deposit, but to pay that money over to him. There was no assumpsit on the bank’s part, and that the first and second causes of action sound in assumpsit is too plain for argument. The language of the charter party is immaterial, so far as concerns the bank. That corporation assuredly did not in terms execute a guaranty, and it cannot be inferred that it ever intended so to do, because it is an improper inference that the unlawful was intended. Corporations generally, in the absence of special statutory powers, are without authority to enter into such a contract (In re Rose Co. [C. C. A.] 275 F. 416); and specifically has a national bank no power whatever to become a guarantor [767] of the obligations of another (Bowen v. Needles Bank, 94 F. 925, 36 C. C. A. 553). It follows that the judgment must rest solely on the third cause of action. If it be assumed that the letters referred to constitute a contract for the benefit of Suzuki, the question of the nature and extent of the bank’s obligation remains. The allegation is of an agreement to receive from Ellsworth and maintain a special deposit equal to one-half month’s hire of the chartered steamship, which amount was in the language of the complaint “payable to” Suzuki immediately upon Ellsworth’s default. It can have been only upon this reading of the contract that plaintiff below recovered. But, as above pointed out, the bank never did and never could enter into a contract of guaranty; it did not and could not undertake the fulfillment of the guaranty requirement of clause 29 of the charter. Therefore the references in the September letters to clause 29 must, consonantly with law, be read restrietively; therefore, also, our holding must be and is that the bank made no other engagement, except to maintain a deposit in Ellsworth’s name of not less .than $40,000 during the life of the charter party referred to. Suzuld could give the bank no order's; Ellsworth. could, and his orders were literally complied with, by directing that, from his ample balance of September 15th, $40,000 should be maintained or retained. This was a perfectly lawful agreement, for, as long as the rights of third persons are not injuriously affected, a deposit account may be the subject of any agreement approved by both the depositor'and the bank. 7 C. J. p. 642. The next inquiry is: By what right can Suzuki say that during the life of the charter party, but after Ellsworth had failed to pay charter hire, any sum of money was payable to him, Suzuld, and by him recoverable from the bank by action at law? It being remembered that the substantial difference between, as well as the technical separation of, law and equity, is rigidly maintained in the courts of the United States. Keatley v. United, etc., Co., 249 F. 296, 161 C. C. A. 304. Plaintiff’s contention is, in substance, that by reasonable in terpretation of the words used the bank agreed with Suzuki to hold a certain sum of Ellsworth’s money “as security for the faithful fulfillment of” the charter party between Suzuki and Ellsworth. This last quotation is from an instrument signed by a bank official and made the basis of suit in Bushnell v. Chautauqua Bank, 74 N. Y. 290. Argument here is that there was a “special deposit” with the bank for the purpose agreed upon between Ellsworth and Suzuki, and that therefore Suzuki may sue the bank at law for the amount of that deposit, as plaintiff thinks was done in the Bushnell Case. We first point out that there never was a deposit, special or otherwise, of more than $40,000. That was literal compliance with Ellsworth’s orders. It was no concern of the bank’s what a half month’s hire amounted to. And we next inquire whether, assuming a special deposit made, but no agreement to pay it directly to Suzuki at any time, the obvious wrong done to Suzuki by permitting Ellsworth to dissipate that special deposit can be made the subject of an action at law? Remembering that the bank was not and could not become a guarantor, and that it never promised to pay any money to Suzuki, the most that ca,n bo said in his favor is that the bank became a trustee of. and for this fund for the life of the charle» party; i. e., until its fulfillment according to its tenor, which time has not yet arrived, and now never will arrive. Therefore it was a breach of trust for the bank to do what it did, and as a trustee it is liable to suit in the nature of an accounting. The legal effect of the situation now portrayed is set forth in San Diego v. California Bank (C. C.) 52 F. 59, following National Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693, and specifically holding (as applied to this ease) that, there never having been any agreement to pay any money out of Ellsworth’s deposit account except to Ellsworth, such rights as Suzuki’s can only be enforced in equity. It may possibly be stated that Suzuki had an equitable lien upon $40,000 worth of Ellsworth’s drawing account (In re Interboro Corp. [C. C. A.] 288 P. 334), or that he had an equitable title after default in the specified portion of Ellsworth’s funds (Union Stockyards v. Gillespie, 137 U. S. 411, 11 S. Ct. 118, 34 L. Ed. 724). To the foregoing authorities from the courts of the United States we do not think the Bushnell Case, supra, is opposed — not that it would make any difference if it were. The Bushnell Case was plainly equitable; for, if that bo not plain from the admitted fact that there never was any contractual relation between Bushnell and the Chautauqua Bank, it is plain from the conduct of the New York Court of Appeals that the matter was there regarded as on the equitable side of the court, because of the dis [768] position of costs. It was only because the matter was equitable that the' court had power to direct. that all costs, including those of the trial court, should be deducted out of the fund held by the Chautauqua Bank. It is elementary that, while costs of appeal are always discretionary, costs of trial are discretionary only in equity; at law they are matter of right. It follows that, on- this.'record, whatever cause of action Suzuki had must rest on the case sought to be stated in the third cause of action, and that ease is equitable and not legal. If, pursuant to the statute, the third cause of action were transferred to the equity side of the court below, and a record there made exactly the same as is here presented, and if the court should hold that there ever was any contract of any kind between Suzuki and the bank, then that contract would be to maintain a deposit of $40,-000 and no more; and the disposition of the cause would be that the plaintiff, having joined Ellsworth as a defendant, would recover that $40,000, without interest, and the bank’s costs would be deductible from the fund. We do not know whether, upon another trial, the facts will appear as they do now; therefore, under the statutes, all we can do is to reverse the judgment, with costs to the plaintiff in error, and remand the case for such further proceedings as may be agreeable to law. '