Where a question was certified from the circuit court to this
whether a certain letter, written by the
cashier of a bank without the knowledge of the directory, though
copied at the time of its date in the letter-book of the bank, was
a legal and valid act of authority, and the record afforded no
evidence relevant to the acts and authority of the cashier, or to
the practice of the bank. In ratifying or rejecting similar acts,
this Court cannot answer the question, and the case must be
remanded to the circuit court, to be tried in the usual
The case is stated in the opinion of the Court.
Page 60 U. S. 386
MR. JUSTICE DANIEL delivered the opinion of the Court.
The United States instituted their action of assumpsit against
the defendants for the recovery of a sum of money, laying their
damages at two hundred thousand dollars.
The declaration consisted of two counts. The first was upon an
alleged agreement between the United States and the City Bank of
Columbus whereby the latter, on the 1st day of November, 1850,
contracted and undertook to transfer for the plaintiff's the sum of
one hundred thousand dollars, the money of the plaintiffs, from the
City of New York to the City of New Orleans, and to deposit the
same at the latter place, in the Treasury of the United States, by
the 1st day of January, 1851, free of charge.
In this count, the receipt of the money by the bank,
one hundred thousand dollars, for the purposes
stated, the failure to make the transfer and deposit in conformity
with the agreement, the conversion of the money so received by the
bank to its own use, are all expressly averred.
The second count was the common indebitatus assumpsit
for money had and received to the plaintiffs' use. Upon the trial
before the jury of the issues joined by the parties, at the October
term of the circuit court, in the year 1855, the plaintiffs, in
order to establish the alleged agreement and undertaking on the
part of the bank, gave in evidence the following papers,
First, a letter from Thomas Moodie, cashier of the City Bank of
Columbus, in these words:
"CITY BANK OF COLUMBUS"
"Columbus, Ohio, October 26, 1850
"Hon. Thomas Corwin, Secretary of the Treasury, Washington
"SIR: The bearer, Col. William Miner, a director of this bank,
is authorized, on behalf of this institution, to make proposals for
the purchase of United States stocks to the amount of one hundred
thousand dollars. Any arrangement he may make will be recognized
and fully carried out by this bank. He is also authorized, if
consistent with the rules of the Treasury Department, to contract
on behalf of this institution for the transfer of money from the
East to the South or West, for the government."
"I have the honor to be, sir, your obedient servant,"
"THOMAS MOODIE, Cashier
Page 60 U. S. 387
Second. The following contract:
"W. CITY, November 1, 1850"
"This will certify that I have contracted with the United States
Treasury, as the agent of the City Bank of Columbus, to transfer
$100,000 from New York to New Orleans, to be deposited in the
Treasury at the latter-named city by the first day of January,
1851, free of charge. I have, in pursuance of said contract, this
day received a draft in my own name for $100,000 on the United
States Treasury at New York City, which is to be accounted for on
"Upon the production of these papers, and proof of their
execution, and further proof that said letter was the act of said
cashier alone, without the knowledge or sanction of the directory
of said bank, before, at the time of, or subsequent thereto, but
was copied in the letter-book of the bank at the time of its
execution, a question arose as to the validity thereof, upon which
question the judges of this court were divided in opinion. It is
therefore, by the request of both the parties, hereby ordered, that
the said question be certified to the Supreme Court of the United
States -- that is to say, 'Do said papers, so made, constitute a
valid contract between the parties to this suit?' It was agreed
that the defendant is an independent bank under the act of the
General assembly of the State of Ohio of 1844-1845, to incorporate
the State Bank of Ohio and other banking companies."
"Wednesday, November 28, 1855.
"JOHN McLEAN [Seal]"
"H. H. LEAVITT [Seal]"
In considering this certificate of division, and the inquiry it
propounds, an insuperable difficulty is perceived, arising from the
partial and imperfect form in which the facts assumed as the
foundation of the inquiry are presented, and from the obvious
absence of facts and circumstances pertinent to the case, and by
which, if disclosed, its complexion might be entirely
This Court is asked to say, whether the above-cited letter of
the cashier of the City Bank of Columbus, written without the
knowledge of the directory, though copied at the time of its date
in the letter-book of the bank, was a legal and valid act and
Now it must be obvious that the legality or validity of the
letter of the cashier, and his authority to write that letter, do
not depend solely and necessarily upon the fact of
Page 60 U. S. 388
the directory at the time of writing that letter, nor on that of
express direction or permission given at the time of its
composition. The letter might have been legal and valid in the
absence of either such knowledge or direction, or of both.
The powers of the cashier of a bank are such as are incident to,
and implied in, his official character, as generally understood, as
cash keeper, cash receiver, or payer, as negotiator and
correspondent for the corporation, or as agent for various acts
that are necessary and appropriate to the functions of such an
officer, and inseparable from the operations of the bank; or those
powers and duties may be created by a general or special authority
declared in the charter or in the bylaws of the corporation. It
would seem inconsistent with these considerations to determine upon
an isolated fact or act of the cashier, not absolutely
irreconcilable with the customary functions of such an officer, as
being decisive of his capacities and duties, and this irrespective
of reference or inquiry as to the powers with which he might have
been clothed, but, on the contrary, by cutting off all proofs as to
the existence of any such powers, when by the introduction of those
proofs the competency of such powers, or the recognition of them by
the bank, might perhaps have been shown.
The true character of this cause seems not to have been
developed before the circuit court, nor is it made apparent upon
the certificate now before this Court.
We think that all the evidence relevant to the acts and
authority of the cashier, either inherent and exercised strictly
or as an agent, general or special, of
the bank, under either the authority of its charter or its bylaws,
and proof, if any, of the ratification or rejection by the bank of
this or of similar acts of the cashier, should have been fully
brought out, to be passed upon by the jury under instructions from
the court, or in the mode of a certificate of division, in the
event of a disagreement between the judges. This Court, therefore,
refusing to respond upon the question, as propounded to them upon
the certificate from the circuit court, remands this case to that
court for trial.