Modern Woodmen of America v. Union Nat. Bank of Omaha

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. Inasmuch as the trial court directed a verdict in favor of the defendant bank, the principal question to be considered by this court is whether that direction was right in view of admitted facts, and in view of facts concerning which there was no substantial controversy. Without attempting, therefore, to notice in detail the various exceptions which were taken to the admission and exclusion of evidence and to some portions of the court’s charge to the jury, we shall direct our attention to the question above stated, namely, whether, in the light of the undisputed facts which were developed by the evidence, the trial court properly directed a verdict in favor of the; defendant hank. With respect to those assignments of error that are addressed to the charge, and concerning which something has been said in the briefs, ii. may be well to observe tha t the rule is well set - tied that when, as in the present: instance, a peremptory instruction is given in favor of either party, the only question with respect to the charge which is open for consideration hv an appellate tribunal is whether such direction to find for one party or the other, when considered in the light of the pleadings and all tin; evidence, was right. Rollins & Sons v. Board of Com’rs of Gunnison Co., 49 U. S. App. 399, 26 C. C. A. 91, 80 Fed. 692, 605. This rule obviates the necessity of considering whether there was error in any part of the charge other than the final direction to the jury to return a verdad in favor of the defendant, as it is immaterial whether the learned judge of the trial court did or did not give expression to certain views that were erroneous in reaching that result. Before considering the principal question in the cast;, we deem it expedient to notice a subordinate question, which arises upon the pleadings; and that is whether the instrument declared upon in the [756] second count of the complaint is an express contract, like a note or bill, upon which an action can be maintained, or whether it is in such form that it can only be used as an item of evidence to establish an indebtedness on account of which the law will imply a promise to pay. If the latter is the correct view concerning the alleged certificate of deposit, then the two counts of the complaint are not substantially different, because, proceeding under either, the plaintiff must establish the existence of a debt, and rely for a recovery upon a promise which the law will imply. It is obvious that the instrument in question is not in the form of an ordinary certificate of deposit, such as banks and other financial institutions are in the habit of issuing, because it does not speak as of the day it bears date, and acknowledge the existence of an indebtedness at that time, but refers to a prior date, and certifies that at that time the plaintiff company had on deposit a specified sum. Neither does the instrument in question contain the usual clause that the sum on deposit is payable on the return of the certificate, or on its presentation, or at any time. In view of the form of the certificate, it would seem to have been designed, not as an ordinary certificate of deposit to show the existence of a present indebtedness on the part of the defendant bank, but rather for the purpose of showing the state of the plaintiff’s account with the bank at a prior date and an indebtedness at such prior date, which, for aught that the certificate discloses, may have been fully discharged before it was executed. No one, we apprehend, would purchase such an instrument on the faith of its own recitals, because it contained no representation that any funds were on deposit when it was issued, and for the further reason that it contained no words indicating that it was intended for negotiation or circulation as an obligation of the bank. For these reasons we are of opinion that an action could not be maintained on this certificate, as might have been done if it possessed the distinguishing features of an ordinary certificate of deposit, and contained words of negotiability or a promise to pay; that it is merely evidentiary in its character, and that the second count of the complaint, like the first, is founded, not upon the certificate, but upon an implied promise. Hotchkiss v. Mosher, 48 N. Y. 478, 482; Daniel, Neg. Inst. (3d Ed.) § 1704. Passing to the main question in the case, it may be said that the testimony at the trial disclosed the following undisputed facts: D. 0. Zink, who had been head banker of the Modern Woodmen of America, had in his possession $27,269.33 of the funds of the order, which he failed to turn over to his successor in office when the latter qualified as his successor, on or about August 18, 1895. This money he had on deposit with the Bank of Commerce, of Grand Island, Neb., of which institution he was a stockholder, and also an active director. After his successor was appointed, he endeavored for some time to induce said order to make said bank one of the depositaries of its funds, but such effort failed. The money remained in Zink’s custody, and on deposit with the Bank of Commerce, during the fall of 1895, and until the bank failed, on or about January 20, 189.6. During that period a demand appears to have been made on [757] him by the plaintiff company to turn over the money to his successor, and. he seems to have promised to pay the same to his successor on or before December 31, 1895. On December 26, 1895, the following letter was written by O. J. Smith, cashier of the Bank of Commerce, to Charles E. Ford, cashier of the Union National Bank of Omaha/: “Granel Island, Neb., 12 — 2P—’1)5. “Chas. 13. Ford, Esq., Cash., Omaha — Dear Sir: As you know, we still have about 25 M. of Zink money, and we have the privilege of keeping it for a time yet, — just how long I don’t know, but I guess until we are ready to pay It out. Now. on Dec. 31 they make an annual statement, & for our good here I don’t want it shown up as in our bank, as it is supposed that we haven’t any Woodmen money. Can I arrange with you to give us a credit of this anit. for a day or two by sending you a note for the amt. & a cheek on the same account so you are fully protected, & you give credit to the Woodmen sect, for the amount for a day or two, & can then issue a certificate showing this amount in your bank at that time instead of here. Mr. Zink & the Woodmen board of directors all understand this, as it has been fully explained to them. An early reply will oblige, yours, O. J. Smith, Cash.” The defendant bank, through its cashier, responded to the aforesaid letter as follows: “Omaha, Neb., Dee. 27, 1895. “O. J. Smith, Cashier, Grand Island, Neb. — Dear Sir: * * * With reference to our assisting you in -the matter of the Zink money of §23,000, would say that wo will comply with your request, provided everything is made safe to ns; and you can send on the papers, as suggested by you. “Respectfully yours, Chas. E. Ford, Cashier.” On December 30, 1895, Smith wrote the following letter to the defendant bank, which contained the specified inclosures, to wit, a note and check: “Grand Island, Neb., 12 — 30—’05. “Chas. E. Ford, Esq., Cash. — Dear Sir: Inclosed find our note for 827,209.33; also check for like amount. Please make the credit on your hooks so you can make certificate that there was to the credit of the Modern Woodmen of America on Doc. 31 — ’95, the above amount. Don’t want Zink’s name 1» appear in the certificate. You can arrange it on your books to suit yourself so you are perfectly safe. We have this matter arranged with the directors of the Woodmen all O. K., so we can pay it out as we like, but don’t want to show it here, for our own good, as it is supposed we haven’t any of this money. Use check to pay note, & return note on Jany. 2 or 3. “Truly yours, O. .T. Smith, Cashier. “Kindly make certificate 31st December, and forward to Zink.” On December 31st, Ford, as cashier, replied to the aforesaid letter as follows: “Omaha, Neb., Dec. 31, 1895. “O. J. Smith, Cashier, Grand Island. Neb. — Dear Sir: I have yours of the 30th. I credit your account with 827,209.33. We will sign a certificate if Hr. Zink will send the form that ho would like for us to use. * * * “Respectfully yours, Chas. E. Ford, Cashier.” On January 2, 1896, the following letter was written, which contained the inclosure therein stated, to wit, the note for $27,269.33: “Omaha, Neb., Jan. 2, 1896. “O. 3. Smith, Cashier, Grand Island, Neb. — Dear Sir: I herewith inclose your note for 827.269.33, the same having been paid by check drawn on this bank by the Modern Woodmen of America, “Respectfully yours, Chas. E. Ford, Cashier.” [758] On January 4, 1896, Zink himself wrote the following letter to the defendant bank, in obedience to the request contained in Ford’s letter of December 31, 1895: “Grand Island, Neb., Jan. 4, lS9Cj. “Obas. E. Ford, Esq., Cashier, Omaha, Nebraska — Dear Sir: Kindly make upon your letter head a certificate showing balance in j-our bank on the 81st clay of December, 1885, as follows: ‘I, Chas. E. Ford, Cashier of the Union National Bank of Omaha, Nebraska, do hereby certify that at the close of business on the 81st day of December, A. D. 1895, the Modern Woodmen of America had on deposit in this bank the sum of $-, designated “General Fund.” ’ Please forward same to me, and oblige, “Yours, respectfully, D. C. Zink, Cashier.” On the receipt of the letter from Zink inclosing the form of a certificate which was desired, such a certificate was executed by Ford, as cashier, the same being the alleged certificate of deposit which is set forth above in the statement. This certificate, on its receipt by Zink, was by him transmitted, as it seems, to the plaintiff company. There was no evidence introduced, so far as we can discover, which tended to show that the defendant bank, or any of its officers, had any knowledge of the object which Zink or the Grand Island bank may have had in view in requesting the issuance of the alleged certificate of deposit, except such as was communicated by the aforesaid letters. No oral communication took place between any of the parties to the transaction, but the same was consummated by correspondence in the manner above shown. And, inasmuch as it was stated in Smith’s letter of date December 26, 1895, and in his letter of date December 30, 1895, that the proposed transaction whereby the plaintiff company was to receive a fictitious credit had been "fully explained” to the plaintiff’s board of directors, and that the Bank of Commerce had "this matter arranged with the directors of the Woodmen all O. K.,” it is evident that the defendant bank did not issue the alleged certificate with any intent to deceive, mislead, or defraud the plaintiff company. The proof shows without contradiction that in issuing the certificate the defendant acted, as it supposed, with the full consent of the plaintiff company for the purpose of benefiting the Grand Island bank in some manner. There is no evidence, therefore, to sustain the allegation contained in the reply that the certificate in question was issued with the intention that it should be delivered to the plaintiff company, and that it should rely upon the facts stated in the certificate as true. That averment of the reply is wholly gratuitous, and unsupported by the evidence.- In view of the facts to which we have adverted, we are of opinion that the trial court properly directed a verdict in favor of the defendant bank. The action, as heretofore shown, was in assumpsit upon an implied promise, and to sustain such an action it is necessary to show the existence of an indebtedness on the part of the person sued, since the law never implies a promise on the part of any one to pay a sum of money, unless the proof shows the existence of a debt growing out of some transaction, which he is legally obligated to pay.. In the present instance it appears that the defendant bank did not have in its hands on December 31,1895, any funds belonging to the plaintiff company; that the credit given to it on that day was purely [759] fictitious; that it was giren in reliance upon representations made by Hmitli (hat the plaintiff understood it to be fictitious, and upon the further assurance that the defendant should incur no liability by giving the credit. It goes without saying that under such circumstances the law will not imply a promise to pay a sum of money which was never received. This is the view of this very transaction which was entertained and expressed by the supreme court of Nebraska in State v. Bank of Commerce of Grand Island, 84 N. W. 406, 407. Nor do we perceive that the defendant bank, on the facts above detailed, should be held estopped from showing the circumstances under which (ho certificate in question was issued, or from showing that in point of fact the Modern Woodmen of America had no funds whatsoever on deposit with it on December 31, 1895. To create an estop-pel such as is here relied upon by the plaintiff company, it is generally held that the false statement must have been made with intent that the complaining party should act upon it, or it: must at least appear that it was foreseen that he would in all probability act upon it to his prejudice. When there is nothing in the circumstances of the case which reasonably indicates that the one who made the false statement intended that the complaining party would act in reliance upon its being true, the party making it is not estopped from pr oving the truth. Kuhl v. Mayor, etc., 23 N. J. Eq. 84, and cases there cited; Mayenborg v. Haynes, 50 N. Y. 675; Wilcox v. Howell, 44 N. Y. 398, 402; Bigelow, Estop. (5th Ed.) pp. 570, 629; Bisp. Eq. § 290, and cases there cited. Now, in the present instance the false certificate was obtained from (he defendant, as already stated, on the representation that the plaintiff’s hoard of directors all understood the transaction, and assented to it; and, however culpable the defendant hank may have been in uttering a false certificate for the purpose of bolstering up the credit of the Grand Island bank, yet it: is clear that it did not intend to deceive the plaintiff company, or to give utterance to a falsehood on which it would act to its prejudice, or in consequence of which it would take any action whatsoever. It supposed, and with good reason, that the fictitious credit which it; was asked to make and certify to was made with iHe full knowledge of the plaintiff’s board of directors, if not at their solicitation, and incidentally for the benefit of the plaintiff company. Under these circumstances we are persuaded that it would be carrying the doctrine of estoppel to an unreasonable limit to hold that the defendant is precluded from telling the truth, and is bound to pay its certificate in full. .V very different result would probably be reached if the certificate had been a negotiable instrument, and had passed into (he hands of an innocent purchaser for value; but we are not called upon to consider such a case. Aside from the foregoing view, it is obvious that, upon tin; theory on which the present action is brought, there could have been no recovery against tlie defendant bank short of the full amount of the certificate; and it is apparent from such examination as we have made of tlie testimony bearing upon that issue that, if tlie plaintiff company sustained any damage whatever in consequence of the issu760 anee of the certificate, either by postponing action against Zink and Ms sureties for the space of about six weeks, or by the failure of Zink to withdraw the fund from the Bank of Commerce, or to make an attempt to withdraw it, the amount of such damage, if any, was small, and far less than the face of the certificate. It is not at all probable, we think, that the fund could have been collected from Zink and his sureties or the Bank of Commerce at any time after December 26, 1895. The fund was probably lost to the plaintiff prior to the latter date. Such actual damages as were in fact sustained could, doubtless, have been recovered in an action ex delicto for deceit, on the assumption, of course, that the directors of the plaintiff company were ignorant of the circumstances under which the certificate was obtained, and on the further assumption that the certificate was issued by the defendant, as alleged in the reply, with the intention that the plaintiff should rely and act on the facts therein stated, and that it was in fact used by Zink to deceive the plaintiff company, and occasioned it some damage. We are of opinion, therefore, that, if a right .of action existed, it should have been brought in form ex delicto, instead of being brought in a form which would necessitate the recovery of a specified sum, although it might be far in excess of the damages actually sustained in consequence of the alleged deceit. The judgment below is affirmed.