Crescent City Bank v. Carpenter

Bbazek, J. The complaint in this case alleged that Willard Carpenter had been the owner of five hundred and ten shares of the stock of the Crescent City Bank; that a firm of which he was a member owed the bank, on the- 20th of February, 1858, the sum of $9,000 with interest, &c.; that to secure that indebtedness, he gave the bank an order ffrawn on one J. C. Jewell, by the firm, dated February 18, 1858, payable to William Baker, cashier of the bank, and accepted by Jewell, and also assigned said stock on the bank books to-said Baker,' who was, and still is, cashier of the bank, in pursuance of a written agreement, to-wit: “ This memorandum of agreement, made this 20th day of February, A. D. 1858, between William Baker, party of the first part, and Willard Carpenter, party of the second part, &c.” The instrument then recites that the Crescent City Bank, at Evansville, holds the acceptance of Willard Carpenter $ Co. for $9,000, due and protested for non-payment on the 8th of February, 1858. That to secure the payment of this acceptance, with interest and charges, the said Willard Carpenter Co., on the 18th day of February, 1858, gave to the said bank an order on J. C. Jewell, directing him to pay said William Baker, cashier of the said bank, for the use of said bank, the sum of $9,500, out of moneys and effects in his hands belonging to the said Willard Carpenter $ Co., which order was, on the 18th day — 110 — of February, 1858, accepted by the said, Jewell. That on the 20th day of February, 1858, the said Willard Carpenter, party of the second part, assigned to said William Baker, on the books of said bank, five hundred and ten shares of the capital stock of said bank. After making these recitals, the instrument goes on to declare the trust, by saying: “ Row this agreement witnesseth, that the said stock is held in trust by said Baker, for the benefit of said bank, as a security for the payment of the said sum of $9,000, with interest,” &c., and then the instrument uses this language, “And it is agreed, by and between the said Baker and the said Carpenter, as follows, to-wit, that if said bank shall realize from said order on said Jewell one third of said debt, within four months from this date, another third within eight months from this date, and the remaining third within twelve months from this date, then the said bank stock shall not be resorted to or sold for the payment of said debt or any part thereof; but if said bank shall fail so to realize,” &c., “then the said Baker may sell and transfer so much of said stock as may be necessary” to make the amounts of each of said installments so iu arrear. Then follows the terms upon which the stock may be sold. It must be at public auction, of which twenty days notice must be given, by publication in an Fvansville paper. It was also agreed that if the debt to the bank should be paid without resorting to the sale of the stock, then the stock should be re-assigned “by the- said Baker to said Carpenter” &c. “In witness whereof the said William Baker and Willard Carpenter have herewith subscribed their names, the date first aforesaid. “ W. Baker, “ Willard Carpenter.” The complaint also alleged that this agreement was assigned by Willard Carpenter to the plaintiff', in writing, by which assignment it was directed that upon the payment of the debt to the bank, the stock should be properly transferred by Baker to the plaintiff; that on the 3d of December, 1858, the plaintiff’ — 111 — paid all of said debt to the bank but $2,080, and on the 6th of the same month tendered to Baker, for the use of the bank, $2,000, in full for the balance, and demanded a transfer of the bank stock to himself; that Baker had previously so transferred three hundred and fifty shares to the plaintiff) but refused to receive the money tendered, or to transfer the remaining one hundred and sixty shares of stock, worth-$4,000; that the directors of the bank, being informed of the facts, refused a request to cause the transfer to be made, and claim that the defendant Beitz, who was and is president of the bank, is the owner of the stock. It is also alleged that dividends have accrued upon the stock, which ought to be credited upon the debt, but which have been appropriated to the use of the bank, without credit. The prayer was for a transfer of the stock, or for its value ih money, and for general relief. The defendants answered in one paragraph, alleging a failure to realize one-third of the debt due from Carpenter within four months from February 20, 1858; that thereupon Baker, at public auction, at the bank, on the 19th of July, 1858, sold said one hundred and sixty 'shares to the defendant Beitz, president, &c., for the use of the bank, for $2,080, that being the best price that could be obtained; that he first advertised the sale by publishing in an Evansville daily newspaper, on the 19th of June, 1858, and. daily thereafter, except Sundays, the following notice: “sale oe bank stock.” “I will sell at public auction, at tbe Crescent City Bank, in the city of Evansville, on Monday, July 19, 1858, at 10 o’clock A. M., 160 shares of the capital stock of the Crescent City Bank, held by me as collateral security for the payment of a debt due the bank. Terms cash.” (Signed) “ W. Baker.” The answer also avers the transfer of the stock to Beitz, — 112 — on the books of the ■ bank, in pursuance of the sale, and denies the receipt of any dividends. A demurrer to the answer was sustained, and the defendants refusing to answer further, a judgment was rendered requiring a transfer of the stock to the plaintiff. There were exceptions to the ruling upon the demurrer, and to the judgment. "Was the answer a bar to the suit? If the stock was held by the bank as a pledge, then the sale was invalid for two reasons. 1. There was no demand of payment preceding the sale. 2. The bank could not, at any rate, become the purchaser. It is the opinion of the majority of the court that the stock was transferred to Baker personally, in trust, and not to him in his character as cashier and agent of the bank. There may be a special assignment of property to a third person by a debtor, to secure a creditor, and this assignee may be the person who happens to be cashier of a bank, though the bank be the creditor. There is nothing in the law or its policy to forbid this. Or the property may be delivered to the creditor directly, as a security. The latter would be a pledge, while the former would not. In the case before us, it is to be observed that the assignment was to Baker merely, without any mention of his being cashier of the bank. The agreement, too, is executed by Baker and Carpenter, and but for the fact that it describes the order on Jeioell, which was payable to “ William, Baker, cashier” of the bank, it could not be ascertained from either the assignment or the agreement that Baker had ever been an officer of the bank. The stipulation that “said stock is held in trust by said Baker for the benefit of the bank, as a security” for the debt, would have been a proper and necessary clause in any view of the question in controversy. A security in any form must, in the nature of things, have been for the benefit of the bank. If, notwithstanding this careful exclusion from the instrument of the fact that Baker was then an officer of the bank, the transfer is still to be deemed to the bank, it is not possible, without — 113 — express negative words, to frame such an instrument, (when the assignee is cashier,) so that it will operate otherwise than as evidence of a pledge. There is no rule for the construction of contracts which gives any warrant to such a mode of interpretation, and certainly none applicable to a case to which a bank is a party, which must not also be applied where the litigants are natural persons. In this case it seems clearly to have been intended to repose a personal trust in Baker, and if he had ceased to be cashier before the occasion arose to sell the stock, the sale could not have been made by his successor as cashier. Carpenter would have had, in that case, a right to insist that he had confided in-the integrity of Baker for the protection of his interests, and had conferred the power to sell upon him personally, and not upon the bank. The writing would have sustained him. In that case this construction would have resulted to his advantage, and would'have avoided the sale. Again, if the stock had been improperly disposed of, the debt having been paid, and the bank had afterwards become insolvent, Baker, upon being sued for the conversion, could not have defended himself by the answer that the transaction was a pledge to the bank. Carpenter would have appealed successfully to-the express letter of the instrument and of the assignment, and Baker would have been held liable upon the ground that the trust was reposed, not in the bank, but in him. The cases cited in the careful argument for the appellee do not, it seems to . us, conflict with the opinion already expressed. In the Mechanics’ Bank, &c., v. The Bank of Columbia, 5 Wheat. 326, the instrument, though signed by the cashier in his own name, bore upon to face other evidence that it was a corporate and not an individual transaction. The Bank of Columbia v. Patterson’s Adm’r, 7 Cranch 299, was a case Avhere, by the form of the contract, the agents, having contracted in writing in their own names, were personally liable, yet as the whole benefit of the contract had inured to the principal, and there was evidence from which — 114 — it might he inferred that the principal had adopted it, by making payments upon it, tbe latter was held liable.- This class of cases stands upon tbe principle that tbe agent was authorized to contract in bis own name, and thereby bind tbe principal. See Story on Agency, § 152, and cases cited in tbe note. In Fleckner v. The U. S. Bank, 8 Wheat. 338, tbe question was whether tbe authority of tbe agent of a corporation, and tbe instrument executed by him as such, must be under tbe corporate seal, and it was ruled in tbe negative. It does not appear in tbe report of tbe case that the agent executed tbe instrument (tbe indorsement of a note) in bis own name. Tbe judgment is reversed, with costs, and tbe cause remanded, with directions to overrule tbe demurrer to tbe answer.