Merchants Bank v. Marine Bank

Spence, J., delivered tire opinion of this court. (iAt the trial of this case, the plaintiff, to maintain the issue on its part, offered to read in evidence to the jury the statement of facts agreed upon by the counsel of the parties, and submitted to the court upon the previous trial of the cause, to the admissibility of which, as evidence in this trial, the defendant objected; but the court over-ruled the objection, and permitted the said statement to be read in evidence to the jury by the plaintiffs, to which the defendant excepted.” This judgment of the court is first for our revision in this case. We know of no legal objection to this statement of facts going in evidence to the jury, as the admissions of the parties of the facts therein set forth. The case of Van Wart vs. Wolley and others, 21 Eng. Com. Law Rep., 366, is so entirely analogous as not to be distinguished upon principle. The Court of Appeals, on the former trial of this cause, decided, “ that if the case stated showed that the appellee, the Merchants Bank, was a bona fide holder of the certificate for value paid, the appellant, the Marine Bank, would not have been entitled to recover. ’ ’ The county court were right in rejecting the first, second, third, fourth and fifth prayers on the grounds assigned in the opinion of the Court of Appeals, namely, that to enable the Merchants Bank to prevent the Marine Bank from recovering, it must shew itself to be a bona fide holder for value of the certificate. It is true, that the hypothesis of the third, fourth, and fifth prayers, each of them, present the fact, that on the 19th day of November 1839, Weld and Jenks had drawn out of the Merchants Bank all the money which stood to their credit, with the exception of $57.77; but it is equally true, that there was evidence to the jury, that on the 22nd day of November 1839, the day on which the forgery was discovered, and the [125] demand made on the Merchants Bank to refund the money, there was standing to the credit of Weld and Jenks, on the books of the Merchants Bank, a balance of $6696.03. It could not be successfully contended, that if at the time this forgery was discovered, and the demand made on the Mer. chants Bank to refund to the Marine Bank the amount paid on the certificate, Weld and Jenks had withdrawn from the Merchants Bank the balance standing to their credit; that the Merchants Bank would not then have been holders of the certificate bona fide, and for value. Fulton Bank vs. Phœnix Bank, 1 Hall's Rep., 573. But, if Weld and Jenks had received credit on the books of the Merchants Bank for the amount of the certificate, that entry was not conclusive upon the Merchants Bank, they were not concluded thereby from correcting their account when the forgery was discovered, on the 22nd November 1839, if they had funds of Weld and Jenks' in their possession, adequate to that purpose. It was, as it stood, evidence; prima facie against the Merchants Bank, but not conclusive. Garland vs. Salem Bank, 9 Mass. Rep., 408. The county court erred in rejecting the defendant’s sixth prayer, as there was no evidence in the cause, of the payment by the Merchants Bank to the Marine Bank of the certificate. We are also of opinion, that the county court erred in refusing the defendant’s seventh prayer. “The cashier of a bank, possessing no incidental to make any declarations binding the bank, not within the scope of his ordinary duties: so if the cashier of a bank should promise to pay a debt which the corporation did not owe, and was not liable to pay, or should admit forged bills of the bank to be genuine, the bank would not be bound by such promise or admission, unless it had authorized or adopted the act.” Storey's Com. on Agency, page 104, sec. 115 and Gloucester Bank vs. Salem Bank, 17th Mass. Rep., 1. From the view which we have taken of the opinion given by the Court of Appeals, on the former trial of this cause, we are of the opinion, that the Merchants Bank cannot, in this [126] case, successfully resist the recovery hy die Marine Bank, and therefore affirm the judgment.