Cooper v. Bank of British North America

Coxn, J. The verdict of the jury has settled the disputed question of fact. The plaintiff’s version of the transaction must be taken as the true one. The following facts are established: On the fourteenth .of December, 1883, the plaintiff drew a draft for £5,000 on Martin, Turner & Co.,of Glasgow, which matured February 29, 1884. It was his duty [173] to take up ibis draft. On the twenty-sixth of February, the defendants, knowing that the money handed them by the plaintiff belonged to him, and that it was sent to retire a draft, agreed with him to forward it by cable to London, and by mail, in the form of a check, from London to Martin, Turner & Co., at Glasgow. Instead of doing this, the defendants, without the knowledge of the plaintiff, and contrary to his instructions, paid the money to the credit of Martin, Turner & Co. at the Bank of Scotland, in London. Had they performed their agreement, the money -would have been saved by the plaintiff. As it was, it was lost to him. The question is whether upon these facts the plaintiff can recover. It is not necesssary to enter, at this time, upon an extended discussion of the authorities cited by counsel, for the reason that, upon the facts as stated, the case of Southern Express Co. v. Dickson, 94 U. S. 549, seems to be controlling. It seldom happens that two eases are exactly parallel upon the facts. In the Dickson Case the property in question was tobacco, and not money, and it was to be sent by express, and not by telegraph and mail. But it is difficult to perceive why the principle there announced is not applicable here. The instructions given to the jury in the two cases were substantially identical. The verdict in that case also was for the plaintiff, and ujjon the facts there found the supreme court said: “We think the rule is that, where the consignor is known to the carrier to be the owner, the carrier must be understood to contract with him only, for his interest, upon such terms as ho dictates in regard to the delivery, and that the consignees are to be regarded simply as agents selected by him to receive the goods at a place indicated.” It is thought that the plaintiff is within this rule, and that this court, as the law now stands, would not be justified in disturbing the verdict. The motion is denied.