Merchants' Bank v. Bank of Commerce ex rel. Hoffman & Co.

Cochran, J., delivered the opinion of this Court. The question as to the right of action, raised by the appellant’s 3d, 4th, 5th and 6th prayers, is the first to be considered. The substantial proposition of these prayers is, that the appellant was relieved from liability for negligence in failing to collect tho draft on Lee & Co., by the subsequent, payment of it by Hoffman & Co., notwithstanding their liability upon it as drawers was extinguished by that negligence, and their payment made under a mistake of fact that legally entitles them to a return of the money! The52 effect of this payment on the appellee’s right of action is, therefore, the real matter to he considered. The theory of the appellant in regard to it appears to us to be founded, in some measure, upon a misapprehension of the principles applicable to that state of case. Treating the payment, according to the hypothesis of these prayers, as one made by mistake, it certainly was one that conferred no benefit on the apipellee, and we think it equally clear that it could not operate for the advantage of the appellant in the way of discharging, or suspending its antecedent liability to the appellee. As the amount of the draft was paid by Hoffman & Co., under a mistake that entitles them to a return of the money, the appellee must be regarded as having received it for their use, and as holding it subject to their order. In legal contemplation the payment was a deposit, for which the appellee must account, and which, instead of suspending or discharging the appellants from their existing liability to the appellee, charges the appellee with one of an entirely different character to Hoffman & Co. This in our opinion was the only legal effect of that transaction, and there is no reason for supposing that it changed or affected, in the slightest degree, any right or liability growing out of, or founded upon the previous relations of the parties here. The cases of Merryman vs. State, 5 H. & J., 423, and Whitney vs. Ind. Mut. Ins. Co., 15 Md. Rep., 298, bear upon this question and tend to support the conclusion we have reached. Nor was it essential to the appellee’s right of action, that the jury should find that the draft was returned to the appellant. The claim asserted here, is not upon the draft, but one sounding in damages for the loss caused by the appellant’s negligence and consequent failure to collect it ; the appellant did not undertake for the payment of the draft, but to exercise due care and diligence in collecting it, an undertaking wholly different in its nature from that [53] of any insurer, surety or party to tlie draft, and one that renders the production and return of the draft unnecessary to the appellee’s right to recover. But this is not all ; the case proceeded on the theory that the draft was rendered valueless by the appellant’s misconduct in regard to it, and if there was evidence from which that fact could be, or was found, there is no reason for supposing that the appellant was prejudiced by the appellee’s failure to surrender it. We think these prayers were properly rejected. A review of the objections, made to the instructions given by the Court in lieu of all the prayers offered on both sides, will dispose of the remaining questions presented by the bill of exceptions. Those objections are founded mainly on two grounds, 1st, that the instruction treats the question of diligence as one of fact for determination by the jury ; and 2d, that it submits that question to the jury on a hypothesis of fact, in some particulars calculated to mislead them, and in others not authorized by the evidence. A careful examination of the case made by the proof has satisfied us that these objections cannot prevail. It is true beyond doubt that in cases of this character, a Court may, by proper legal inferences from the nature of the undertaking, determine in general the things required to be done in performing it, and that the failure to do any of the things, so required to be done, would amount to negligence ; but it has no such power when the question as to due diligence is made to depend on a state of facts and circumstances of a character so unusual that they could not have been contemplated by the parties to the undertaking, and to which no settled rule of law can he applied. The principle for testing the force of this objection, is, we think) correctly stated in the case of Balt. & Ohio R. R. Co. vs. Worthington, 21 Md. Rep., 275. It was there said, a majority of the Court concurring, “that negligence in [54] the ordinary legal sense imports an absence or want of such care as the law requires in the performance of any given undertaking, and generally speaking is a fact, the finding of which is for the jury, although the Court may declare the legal nature and extent of the duties incident to the undertaking, as well as those facts which by inference of law are essential to its performance;” and again that the Court may determine the question incases “ where the negligence alleged may be deduced from the absence of any fact which the law of the contract presupposes, and requires should be shown.” The question here did not depend on evidence of any omission on the part of the appellant to do those things which, by the settled rules of law, applicable to the undertaking, were necessary to its performance, but upon the proof of facts and circumstances that might have added to or changed the conditions of the duty to be performed, .but in that respect of -a character too uncertain to authorize a judicial determination of their effect. We think the question was properly submitted as one within the province of the jury. The material point of the remaining objection is that the instruction submitted the question as to the “ doubtful credit” of Lee & Co., to the jury as a fact bearing on the question of due care and diligence, without requiring them to find that the appellant had knowledge of it at the time of presenting the draft and receiving the check. We do not understand the words “doubtful credit” in the restricted sense contended for by the appellant. These terms are very comprehensive, and when used, as here, without words of limitation or qualification, are understood to mean reputation or standing in the community, as distinguished from the estimate of particular individuals. In that sense, the “ doubtful credit” of Lee & Co., when found, was a fact of which the appellant presumptively had knowledge, and for that reason it was not necessary that such [55] knowledge should he otherwise ascertained. The other facts submitted to the jury, were all of them such as they •could properly consider in passing on the question of negligence. There was evidence from which all of them could he found, and so far as we can discover, none of them were calculated to mislead the jury in finding their verdict. The ambiguity complained of by the appellant appears, upon reading tlie whole instruction, to be entirely removed, and we think, upon a full consideration of the whole case, that the judgment should he affirmed. (Decided February 19th, 1866.) Judgment affirmed.