1. Evidence of powers habitually exercised by a cashier of a
bank with its knowledge and acquiescence, defines and establishes,
as to the public, those powers, provided that they be such as the
directors of the bank may, without violation of its charter, confer
on such cashier.
2. Where the authority of the agent is left to be inferred by
the public from powers usually exercised by the agent, it is enough
if the transaction in question involves precisely the same general
powers, though applied to a new subject matter.
Thus, if in the case of a bank having power by its charter to
buy and sell exchange, coin and bullion, its cashier have
habitually, with the knowledge of the bank, dealt with the public
as authorized to buy and sell exchange, then the power to buy and
sell coin also (the right to do both being conferred by the same
clause of the charter), may be inferred by a jury.
So if a cashier is shown to have frequently pledged in writing
the credit of his bank for large amounts in the usual course of
business, with the knowledge of the ban -- borrowing and lending
its money and buying and selling exchange -- doing all this usually
by cashier's checks, though sometimes by certificates of deposit
and sometimes by memoranda, the transactions being uniformly made
in faith of the implied powers of the cashier, without inquiry as
to special authorization, and such is shown to be the usage of
other banks as above stated, it is evidence from which a jury may
infer that such cashier is authorized to pledge the bank's credit
by certifying a check to be "good" this last method being one not
distinct in its nature from the others named, but similar
Page 77 U. S. 605
to them, and involving in form and substance the same obligation
and consequence to the bank.
3. These principles hold even though it is not shown that any
cashier of any bank in the particular place where the transaction
which was the subject of the suit arose, ever used his powers to
purchase coin, or ever certified a check to be good.
4. The National Currency Act of 1864, authorizing the banks
created under it to buy and sell coin, a bank having coin in pledge
may sell and assign its special property, in which case the
assignee will become vested with the legal rights of the
assignor.
5. If a cashier, without authority to buy coin in behalf of his
bank, do so buy it, and it goes into the funds of the bank, the
bank is liable upon the principle of
quantum valebat.
6. The clause of the National Currency Act of 1864, which
directs that "the usual business" of the banks created under it
shall be transacted "at an office or banking house in the place
specified in its organization certificate," does not prevent the
purchase of coin by one bank at the banking house of another.
7. The certifying as "good" of checks given in the course of
business for convenience, is not within the prohibition of the 23d
section of the National Currency Act of 1864, which forbids the
issue of post notes or
"other notes" to circulate as
money, other than the ordinary bank bills authorized by the
act.
8. A stamp such as the Internal Revenue Act requires for the
acceptance of a draft is not required on the marking of a check
"good," "certified checks" being taxed specifically in another
way.
Error to the Circuit Court for the District of Massachusetts in
a suit by the Merchants' National Bank against the State National
Bank upon three checks of Mellen, Ward & Co., on the latter
bank, marked "good" by its cashier, and given to the former bank,
amounting, the three, to $600,000.
The case, as developed by admitted facts and by the plaintiff's
evidence alone, was thus:
Both banks were associations organized under the National
Currency Act of 1864; the State Bank with a capital, as its
articles of association seemed to show, of $1,800,000, capable of
being increased.
Under this National Currency Act, the affairs of "every such
association shall be managed by not less than five directors, one
of whom shall be president." The directors during their whole term
of office must be citizens of the
Page 77 U. S. 606
United States. Three-fourths of them must have resided in the
state one year preceding their election and reside there during
their continuance in office. Each must own at least ten shares of
stock, and as such owner he is personally liable to twice their
value. All are to be sworn to the diligent and honest
administration of the affairs of the association.
The total liabilities of any person or firm or association to
the bank shall never, by section twenty-nine of the act, exceed
one-tenth of its capital. Bonds are to be deposited as security for
the bills of the bank, which by section twenty-one may never exceed
90 percent of the bonds deposited. Section twenty-three enacts that
no bank shall issue post notes or other notes to circulate as money
than such as are authorized by the foregoing provisions of the act
and by various sections, [
Footnote
1] care is taken to restrain the circulation, and to secure its
redemption.
The act by its eighth section enacts that each association
organized under it may, "by its board of directors appoint a
president, vice-president, cashier, and other officers,
define
their duties," &c. And it authorizes the association to
exercise all such
incidental powers as shall be necessary
to carry on the business of banking by discounting and negotiating
promissory notes, drafts, bills of exchange, and other evidences of
debt; by receiving deposits;
by buying and selling
exchange,
coin, and bullion &c. The directors are
empowered to regulate by bylaws the manner in which its general
business shall be conducted. "And its usual business," says the
same section, "shall be transacted at an office or banking house
located in the place specified in its organization
certificate."
The directors of the State Bank defined the duties of their
cashier no otherwise than that by the 1st article of the bylaws he
was to notify corporate meetings and act as clerk at them; by
article 7th was to be responsible for moneys, funds, and all other
valuables of the bank; by article 11th
Page 77 U. S. 607
"was -- either he or the president -- to
sign all
conveyances of real estate voted by the directors, and by article
17th was -- either he or the president again -- to sign all
contracts,
checks, drafts, receipts,"
&c., and also all endorsements necessary to be made by the
bank.
Evidence, however, showed that as matter of fact the cashier of
the Merchants' Bank was entrusted by its directors with large and
comprehensive powers in dealing with the funds -- so much so that
instead of his transactions going regularly, as they occurred,
through the books of the bank and being credited or debited to the
accounts to which they severally belonged, there was opened on the
books of the bank one general account with the cashier, in which
all the debits and the credits arising out of them, were entered to
his debit or credit, that these transactions thus entered
on the books embraced the giving of checks in lieu of bills where
discounts were made, giving checks for the purchase of exchange,
giving checks for money borrowed of other banks; that the amount of
checks thus given for exchange, and in lieu of bank bills on
discounts, during the five months prior to the transaction which
was the subject of this suit, was $2,500,000, and in addition, that
the amount of such checks given for money borrowed of other banks
during the same period was $1,547,000. And that regular printed
blank checks were kept by the bank to facilitate these operations
of their cashier.
So also evidence derived from the officers of twenty-two banks
of Boston, in relation to the dealings of such banks with each
other, showed a usage by which, without bylaw or vote, powers were
entrusted to cashiers of such banks to borrow and lend the money of
their banks of and to each, to buy and sell exchange of and to each
other, and in all such transactions to pledge the credit of their
respective banks -- usually by cashiers' check, sometimes by
certificates of deposit or memoranda; that these transactions were
frequent, involving large sums of money, and that they were
uniformly conducted in faith of the implied powers of cashiers,
without inquiry; but the usage shown with regard to
Page 77 U. S. 608
the powers exercised by the twenty-two cashiers failed wholly to
show that any one cashier had ever used his powers to the purchase
of gold coin or had ever certified checks to be "good." Nor was it
shown that the cashier of the State Bank had, either before or
since the transactions on which this suit arose, ever certified as
good the check of either depositor or stranger.
In fact, the Supreme Court of Massachusetts had decided in
Massey v. Eagle Bank [
Footnote 2] that a
teller could not so certify
checks, placing the decision on grounds that seemed general. Such a
power, said the court in that case,
"is in fact a power to pledge the credit of the bank to its
customers -- a power which, by the Constitution of a bank, can
alone be exercised by its president and directors unless specially
delegated by them, and consequently it cannot be implied as a
resulting duty or authority in any individual officer."
Touching the matter of usage, the court said:
"But if a usage had been proved of the certifying by the teller
that the check is good, to enable the holder to use it afterwards
at his pleasure, such a usage would be bad and could not be upheld.
It would give to bank checks, which are intended for immediate use
and are the substitute for specie, in the ordinary transactions of
business, the character of bills of exchange, payable to the
bearer, the bank being the acceptor, and payable at an indefinite
time. It would lead to loans to favored individuals, without the
usual security. It would substitute checks for cash in the hands of
tellers who receive them, and would confer the power upon a single
officer to pledge the credit of the bank by the mere writing of his
name -- a power never contemplated by the legislature nor intended
to be conferred by the stockholders."
On the other hand, Congress, by its Internal Revenue Act of June
30, 1864, [
Footnote 3] under
the head of "Banks and Banking," had laid
"a duty of one-twelfth of one percent each month upon the
average amount of circulation issued
by any bank &c.,
including as circulation all
certified checks, and all
Page 77 U. S. 609
notes and other obligations,
calculated or intended to
circulate or to be used as money."
In this state of preexistent laws and usage, or absence of it,
the plaintiffs' evidence showed that the Merchants' National Bank
of Boston was applied to on the 22d of February, 1867, by Ward,
Mellen & Co., brokers, with the statement that they were about
to purchase in New York, "for responsible parties," three or four
hundred thousand dollars of gold, and with the request that the
Merchants' Bank would take and pay for the gold as it came from New
York at $1.25 in currency (about 15 percent below the value at that
time in currency); that these responsible parties would be prepared
to take it in a few days, and that when thus taken away, it would
go through probably some other bank, mentioning perhaps the State
Bank.
There had been previous transactions in gold between the bank
and Mellen, Ward & Co., and the proposition now made was
accepted upon the terms previously fixed in them --
viz.,
that the gold should be a purchase by the bank, with a right of
repurchase by Mellen, Ward & Co. on repayment of the cost and a
premium "equivalent to interest on the amount invested by the bank
on the gold."
Under this arrangement, the Merchants' Bank, on notice from
Mellen, Ward & Co., on the 26th and 27th of February, took from
the Second National Bank, and paid that bank for the same, $400,000
gold certificates, which, so far as appeared, had never been in the
hands of or owned by Mellen, Ward & Co., and added the same to
the gold of the bank. No obligation, note or memorandum accompanied
the transaction as made, it being, as the direct testimony of the
cashier and teller of the Merchants' Bank stated and so far as the
transaction appeared on its face, a sale of gold with a right to
repurchase, although both the officers named, in written
instruments, spoke of it as a loan.
On the 28th of February, Smith, the cashier of the State Bank,
came to the Merchants' Bank in company with Carter,
Page 77 U. S. 610
one of the firm of Mellen, Ward & Co., and said to the
cashier there, "We have come in to get an amount of gold," and that
he "would pay for the gold by certifying the checks when he saw
that the gold was all right." The coin certificates to the amount
of $400,000 were by the cashier of the Merchants' Bank, "passed out
to Mr. Smith, cashier of the State Bank." He counted them,
and then handed to the cashier of the Merchants' Bank the two
checks of Mellen, Ward & Co. on the State Bank, certified
"Good, C. H. Smith, cashier." These checks were certified not at
the State Bank, but in the Merchants' Bank, "on the spot," and
after it was ascertained that the gold certificates received
corresponded with the amount for which the checks had been drawn.
They had no stamp on them, but the usual two cent bank check stamp
-- that is to say, no such stamp as the law requires for an
acceptance. On the same day, Smith, the cashier of the State Bank
(Carter accompanying him) applied to and received from the
teller of the Merchants' Bank $60,000 more of gold, which the bank
had previously purchased at the request of Mellen, Ward & Co.
upon the same terms as above stated. The cashier was absent, and
the teller took from Smith in payment a check for $75,000, similar
to ones already mentioned, for the reason, as he says, that "I
delivered the gold
to the cashier of the State Bank."
Although it appeared that Mellen, Ward & Co. had been somewhat
speculating in a copper stock, and had once obtained a loan on it
from the Merchants' Bank, and that the cashier of the bank had a
small interest with them in the stock, there seemed to be no proof
in the case as it stood before this Court -- that is to say as it
was presented by the plaintiff's evidence alone -- that the cashier
of the Merchants' Bank, in the delivery of the gold or the cashier
of the State Bank in certifying the checks in payment for it acted
otherwise than with good faith.
On or before the 1st of February following, Ward, Mellen &
Co. failed. The subsequent history of the checks was thus given by
Mr. Haven, the president of the plaintiff or Merchants' Bank.
Page 77 U. S. 611
"The first time I saw these checks was a little after twelve
o'clock, on Friday, the 1st day of March, 1867. I took the checks
in may hand a little after one o'clock, on that day and presented
them to the cashier of the State Bank. I said to him, 'I thought
you were coming in to pay the money for these checks early this
morning.' The cashier replied, 'Yes, I am going out now to attend
to it, and get the money.' 'Get the money?' said I; 'didn't you
have the money -- the gold? were not the gold certificates
delivered to you?' 'Yes,' said he; 'I
had them here, but
they are not here now. I am going out to get it, and will come in
and attend to it.' I spoke rather abruptly, and said that he should
do it immediately. He looked up and said,
'You hold the State
Bank.' I came back and laid the checks on the desk of the
teller. About a quarter before two o'clock, I took the checks into
the directors' room of the State Bank. There were three or four
gentlemen present. Either Mr. McGregor (who was a former president
of the bank) or Mr. Dana introduced me to the president of the
bank, Mr. Stetson. I presented the checks to Mr. Stetson, the
president. Mr. Stetson took the checks and deliberately read them,
one by one, aloud to his directors and those gentlemen who were
present. He then said to me that they had not authorized their
cashier to certify checks. He turned to Mr. McGregor and said,
'Have we, Mr. McGregor?' Mr. McGregor made no reply. I then said,
'He
has certified checks, and those checks were given to
the cashier of the Merchants' Bank for gold delivered to him, the
property of the Merchants' Bank, and I want payment for that gold.'
The gentlemen were considerably excited, and I wanted action. I
said to them,"
"I have just heard that there is trouble at the sub-treasury. I
think you had better go down there; perhaps you will find your gold
there, and if you wish it, I will go with you."
"The gentlemen went, two of them, Mr. Stetson, the president of
the bank, and Mr. McGregor, the ex-president, and we entered the
room of the assistant treasurer. I think I introduced them, saying
to the assistant treasurer, 'These gentlemen have come in to see if
there has not been a large amount of gold placed to the credit of
the State Bank.'"
Farther than as it was to be inferred from this testimony, it
did not appear whether the State Bank had or had not
Page 77 U. S. 612
got the use of the gold. No proof was given that it did not go
to that bank. However that particular fact might have been, the
State Bank refused to pay the checks of Mellen, Ward & Co.,
certified "good" by Smith, its cashier, and the Merchants' Bank
sued in assumpsit for the amount, some of the counts being special
on the transaction, others on a
quantum valebat, money had and
received, &c.
Page 77 U. S. 637
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United
States for the District of Massachusetts. The plaintiff in error
was the plaintiff in the court below. It appears by the bill of
exceptions that upon the evidence in behalf of the plaintiff being
closed, the defendant's counsel moved the court to instruct the
jury that it was not sufficient to warrant them to find a verdict
for the plaintiff upon either of the counts in the declaration.
This instruction was given. The jury found for the defendant. The
plaintiff excepted, and has brought that instruction here for
review. This renders it necessary to examine the entire case as
presented in the record. According to the settled practice in the
courts of the United States, it was proper to give the instruction
if it were clear the plaintiff could not recover. It would have
been idle to proceed further when such must be the inevitable
result. The practice is a wise one. It saves time and costs; it
gives the certainty of applied science to the results of judicial
investigation; it draws clearly the line which separates the
provinces of the judge and the jury, and fixes where it belongs the
responsibility which should be assumed by the court. The facts
disclosed in the bill of exceptions are neither numerous nor
complicated. The defendant called no witnesses. There is no
conflict in the testimony. The questions which it is our duty to
examine are questions of law. None is made upon the pleadings, and
it is unnecessary to consider them. It is sufficient to remark that
the declaration is so framed as to meet the case in every legal
aspect which it can assume.
On the 26th of February, 1867, Fuller, the plaintiff's cashier,
received from the Second National Bank of Boston $200,000 of gold
certificates, and paid the bank, upon their delivery, the amount of
their face and a premium of 25 percent. Payment was made in
currency and legal tender notes. The next day he received from the
same bank $200,000 more of like certificates, and paid for them at
the same rate in currency and a ticket of credit by the Merchants'
Bank in favor of the national Bank for $175,000. Both transaction
were
Page 77 U. S. 638
pursuant to an arrangement with Mellen, Ward & Co., brokers,
in Boston. The market premium upon gold at that time was 40
percent. It was understood between Fuller, the cashier, and Mellen,
Ward & Co., that the latter might receive the same amount of
gold from the Merchants' Bank at any time thereafter by paying the
amount advanced, compensation for the trouble the bank had
incurred, and interest at the rate of six percent. There had been
like transactions upon those terms between the parties prior to
that time. The president of the bank was consulted in advance as to
both the purchases from the Second National Bank, and approved
them. The following testimony is taken from the record:
"George H. Davis testified as follows: I am the paying teller of
the Merchants' Bank. From about the 1st of January, 1867, and
previous to the 23d of February, the bank several times received
gold or gold certificates from Mellen, Ward & Co., for which it
paid currency at the rate of $125 for $100 in gold. At that time
they had deposited in the bank about $90,000 in gold. No note,
memorandum, or check was taken connected with it in any way. The
gold was added to the gold of the bank; on my cash book it was
added to the item of gold, and the gold was mixed with the gold of
the bank in the vault. If it consisted of certificates, they were
put in a pocket book kept in my trunk with other certificates and
bills. (The paying teller's book was put in, and from the entries
in it on the 26th, 27th, and 28th of February, 1867, it appeared
that the gold received from Mellen, Ward & Co. was added to the
gold of the bank.)"
On the 28th day of February, Carter, of the firm of Mellen, Ward
& Co., and Smith, the cashier of the State Bank, called
together at the Merchants' Bank. Carter said to Fuller, "We have
come in for gold." Smith, the cashier, said, "We have come to get
an amount of gold," and that he would "pay for it by certifying
these checks," referring to two papers which Carter held in his
hand. The teller handed Fuller 84 gold certificates of $5,000 each,
making the sum of $420,000. Fuller announced the amount. Smith
said
Page 77 U. S. 639
that was the amount wanted, and the amount covered by the
checks. He received the certificates, certified the checks, and
handed them over to the plaintiff's cashier. They were drawn by
Mellen, Ward & Co. upon the State National Bank in favor of
Fuller, the plaintiff's cashier, or order, and were certified
"Good; C. H. Smith, cashier." One was for $250,000 and the other
for $275,000. Smith thereupon left the bank with the certificates
in his possession. Nothing was said by Fuller to Carter or by
Carter to Fuller in relation to the checks, and Fuller did not know
what checks Smith referred to until they were delivered to him.
Smith did not certify or deliver the checks until he had got
possession and control of the funds upon which his certificates
were apparently founded, and this was known to the plaintiff's
agent when he received the checks. Later on the same day, Smith and
Carter called again at the Merchants' Bank. Fuller was absent.
Smith received $60,000 more of gold and gold certificates from the
teller, and gave in return a check for $75,000, drawn by Mellen,
Ward & Co. on the State Bank, payable to "gold or bearer." Like
the two previous checks, it was certified "Good; C. H. Smith,
cashier." This arrangement was in pursuance of the same agreement
as that under which the gold certificates were delivered in the
earlier part of the day. Both transactions were alike within its
scope.
On the 1st of March, Havens, the president of the Merchants'
Bank, called at the State Bank and complained that Smith had not
paid the checks. Smith said he was going out to get the money.
Havens inquired, "Didn't you have the money -- the gold? Were not
gold certificates delivered to you?" He answered, "Yes, I had them
here, but they are not here now. I am going out to get it, and will
come in and attend to it." Subsequently, in the same conversation,
he said, "You hold the State Bank." Later in the day Havens called
upon Stetson, the president of the State Bank. Stetson denied that
Smith was authorized to certify the checks, and appealed to a
director who was present. The director was silent. In an account
which Fuller rendered
Page 77 U. S. 640
to Mellen, Ward & Co. after their failure, showing the
disposition of various collaterals which Mellen, Ward & Co. had
deposited from time to time with the Merchants' Bank, the amount
paid for gold was put down as a loan, and interest was charged, but
in his testimony before the jury he denied that the money was
loaned, and insisted that the gold was bought by the Merchants'
Bank. The agreement between Mellen, Ward & Co. and the
Merchants' Bank rested wholly in parol. No written voucher was
given or received on either side touching any of the transactions
between the parties. The record discloses nothing else in this
connection which it is material to consider.
The State Bank was organized under the Act of Congress "to
provide a national currency," &c., of the 3d of June, 1864.
[
Footnote 4] The eighth section
of that act authorizes such associations, by their directors, to
appoint a cashier and other officers and to exercise
"under this act all such incidental powers as shall be necessary
to carry on the business of banking by discounting and negotiating
promissory notes, drafts, bills of exchange, and other evidences of
debt; by receiving deposits; by buying and selling exchange, coin,
and bullion; by loaning money on personal security; by obtaining,
issuing, and circulating notes, according to the provisions of this
act,"
&c. It is further provided that the directors may, by
bylaws, regulate the manner in which its business shall be
conducted and its franchises enjoyed, and that its general business
shall be transacted at an office "located in the place specified in
its organization certificate."
The 5th of the articles of association authorizes the board of
directors to appoint a cashier and such other officers as may be
necessary and to define their duties. The 7th bylaw declares that
the cashier "shall be responsible for the moneys, funds, and other
valuables of the bank, and shall give bond," &c. The 17th bylaw
requires that all
"contracts, checks, drafts, receipts &c., shall be signed
by
Page 77 U. S. 641
the cashier or by the president, and that all endorsements
necessary to be made by the bank shall be under the hand of the
cashier or president"
unless absent.
The bylaws contain nothing further upon this subject. The
directors failed to define more specifically the powers and duties
of the cashier.
Smith, the defendant's cashier, exercised habitually very large
powers without any special delegation of authority. An account was
kept on the books of the bank with him as cashier which represented
these transactions, and printed blank checks were kept in the bank
to facilitate them. The checks given by him for the proceeds of
bills discounted and for the purchase of exchange during the five
months preceding the 23d of February, 1867, amounted in the
aggregate to two and a half millions of dollars. This was exclusive
of his clearing-house checks. His checks for money borrowed of
other banks, during the six months preceding the same 23d of
February, amounted to one million five hundred and forty-seven
thousand dollars. A large number of the cashiers of other banks in
Boston were examined, and testified that they exercised the same
powers under like circumstances. There is no proof that either they
or Smith ever certified checks. It is not shown what became of the
gold. Perhaps some light is thrown on the subject by the remark of
the president of the Merchants' Bank to the president of the State
Bank "that the latter had better go to the sub-treasury, and that
he would perhaps find his gold there." We find no reason to doubt
that both banks, as represented by their cashiers, acted in entire
good faith throughout the transactions until they were closed by
the delivery of the last of the certified checks. Neither could
then have anticipated the difficulties and the conflict which
subsequently arose.
The first question presented for our consideration is what was
the title of the plaintiff, and what were the rights of Mellen,
Ward & Co. in respect to the gold certificates delivered by the
Second National Bank to the Merchants'
Page 77 U. S. 642
Bank? No very searching analysis of the facts disclosed is
necessary to enable us to find a satisfactory answer to this
inquiry. It does not appear that Mellen, Ward & Co. had any
connection with the certificates received from the Second National
Bank until after the plaintiff took the action which they invoked
and came into possession of the property.
The Merchants' Bank applied for them, bought them, paid for
them, received them, and deposited them with its other assets of
like character. It does not appear that any special mark was put
upon them or that anything was done to distinguish them from the
other effects of the bank with which they were mingled. Upon the
face of the transaction, it was a simple sale by the Second
National Bank, whereby the entire title and property became vested
in the plaintiff. But gold was then at a premium of 40 percent in
currency. The Merchants' Bank paid but 25, according to the
contract between the bank and Mellen, Ward & Co. The latter
were to pay, and it is to be presumed did pay, the additional 15
percent. This was a part of the consideration upon which the
Merchants' Bank entered into the contract. It is evident that the
bank did not agree to deliver to Mellen, Ward & Co. the
identical gold certificates which were purchased, but gold, or its
equivalent in certificates to the same amount, and any gold, or any
certificates would have satisfied the contract. The bank cannot,
therefore, be regarded as holding the certificates in pledge. The
want of the element that the identical certificates were to be
delivered is conclusive against that view of the subject. If
Mellen, Ward & Co. had tendered performance and called for
gold, and the bank had failed to respond, Mellen, Ward & Co.
could have sustained an action for the breach of the contract. But
they could not have maintained detinue, trover, or replevin against
the bank. The real character of the transaction was that the bank
took the title and entire property, but Mellen, Ward & Co. had
the right to purchase from the bank the like amount of gold or its
equivalent in certificates, according to the terms of the contract,
which were
Page 77 U. S. 643
that they should pay what the bank paid, compensation for its
trouble, and interest from the time the purchase by the bank was
made.
In respect to the $60,000 of gold and gold certificates
delivered by the teller in the absence of the cashier, and the
excess of gold certificates over $400,000 delivered by the cashier,
the facts are substantially the same as those in regard to the
$400,000, except that the excess of certificates, and what was
delivered by the teller, had reference to gold and gold
certificates deposited in the bank by Mellen, Ward & Co. This
difference is not material. With this qualification, the same
remarks apply which have been made touching the $400,000 of
certificates, and we are led to the same legal conclusions.
The transactions between the State Bank and the Merchants' Bank
were apparently of the same character as that between the
Merchants' Bank and the Second National Bank. What the
understanding between Mellen, Ward & Co. and the defendant was
is not disclosed in the evidence. But it is fairly to be inferred
that it was the same as that between them and the Merchants' Bank.
When the arrangement was proposed by Carter to Fuller on the 22d of
February, Carter said that "when the gold was taken from the
Merchants' Bank, he thought it would go through some other bank or
banks." The assent of Mellon, Ward & Co. to the sale to the
State Bank by the Merchants' Bank extinguished their claim upon the
latter. The Merchants' Bank certainly had a title of some kind, and
whatever it was it passed to the State Bank unless the contract was
void, because the State Bank had no corporate power, or its cashier
had no authority to make the purchase. The act of Congress
expressly authorizes the banks created under it to buy and sell
coin. No question of
ultra vires is therefore
involved.
If the Merchants' Bank held the certificates as a pledge, it had
a special property which might be sold and assigned. The assignee
in such cases becomes invested with all the legal rights which
belonged to the assignor. Such is the
Page 77 U. S. 644
rule of the common law, and it has subsisted from an early
period. [
Footnote 5]
But we are entirely satisfied with the other view we have
expressed upon the subject.
Modus et conventio vincunt
legem.
It is insisted by the defendant's counsel that the transaction
was a loan to Mellen, Ward & Co. As the bank parted with its
title, if there were a loan in the eye of the law, it would not in
any wise affect the conclusions at which we have arrived.
Recurring to the subject of the authority of the cashier of the
State Bank to make the purchase, and excluding from consideration
for the present the certified checks, three views, we think, may be
properly taken of the case in this aspect.
1. If the certificates and the gold actually went into the State
Bank, as was admitted by Smith to Havens, then the bank was liable
for money had and received, whatever may have been the defect in
the authority of the cashier to make the purchase, and this
question should have been submitted to the jury.
2. It should have been left to the jury to determine whether,
from the evidence as to the powers exercised by the cashier, with
the knowledge and acquiescence of the directors, and the usage of
other banks in the same city, it might not be fairly inferred that
Smith had authority to bind the defendant by the contract which he
made with the Merchants' Bank.
3. Where a party deals with a corporation in good faith -- the
transaction is not
ultra vires -- and he is unaware of any
defect of authority or other irregularity on the part of those
acting for the corporation, and there is nothing to excite
suspicion of such defect or irregularity, the corporation is bound
by the contract although such defect or irregularity in fact
exists.
If the contract can be valid under any circumstances, an
Page 77 U. S. 645
innocent party in such a case has a right to presume their
existence, and the corporation is estopped to deny them.
The jury should have been instructed to apply this rule to the
evidence before them.
The principle has become axiomatic in the law of corporations,
and by no tribunal has it been applied with more firmness and vigor
than by this Court. [
Footnote
6]
Corporations are liable for every wrong of which they are
guilty, and in such cases the doctrine of
ultra vires has
no application. [
Footnote
7]
Corporations are liable for the acts of their servants while
engaged in the business of their employment in the same manner and
to the same extent that individuals are liable under like
circumstances. [
Footnote 8]
Estoppel
in pais presupposes an error or a fault and
implies an act in itself invalid. The rule proceeds upon the
consideration that the author of the misfortune shall not himself
escape the consequences and cast the burden upon another. [
Footnote 9] Smith was the cashier of
the State Bank. As such, he approached the Merchants' Bank. The
bank did not approach him. Upon the faith of his acts and
declarations, it parted with its property. The misfortune occurred
through him, and as the case appears in the record, upon
Page 77 U. S. 646
the plainest principles of justice the loss should fall upon the
defendant. The ethics and the law of the case alike require this
result. [
Footnote 10]
Those who created the trust, appointed the trustee, and clothed
him with the powers that enabled him to mislead, if there were any
misleading, ought to suffer, rather than the other party. [
Footnote 11]
In the
Bank of the United States v. Davis, [
Footnote 12] Nelson, Chief Justice,
said:
"The plaintiffs appointed the director and held him out to their
customers and the public as entitled to confidence. They placed him
in a position where he has been enabled to commit this fraud."
The director had fraudulently appropriated the proceeds of a
bill discounted for the drawer. It was held the drawer was not
liable.
The reasoning of Justice Selden in the
Farmers' &
Mechanics' Bank of Kent Co. v. Butchers' and Drovers' Bank
[
Footnote 13] is also
strikingly apposite in the case before us. He said:
"The bank selects its teller and places him in a position of
great responsibility. Persons having no voice in his selection are
obliged to deal with the bank through him. If, therefore, while
acting in the business of the bank and within the scope of his
employment,
so far as is known or can be seen by the party
dealing with him, he is guilty of misrepresentation, ought not
the bank to be responsible?"
The same principle was applied in the
New York & New
Haven Railroad Co. v. Schuyler. [
Footnote 14]
It was explicitly laid down by Lord Holt in
Hern v.
Nichols. [
Footnote 15]
He there said:
"For seeing somebody must be a loser by this deceit, it is more
reason that he that employs and puts trust and confidence in the
deceiver should be a loser than a stranger, . . . and upon this the
plaintiff had a verdict. "
Page 77 U. S. 647
Smith, by his conduct, if not by his declarations, avowed his
authority to buy the certificates and gold in question from the
Merchants' Bank, and the bank, under the circumstances, had a right
to believe him.
We have thus far examined the controversy as if the certified
checks were void or had not been given. It remains to consider that
branch of the case. Bank checks are not inland bills of exchange,
but have many of the properties of such commercial paper; and many
of the rules of the law merchant are alike applicable to both. Each
is for a specific sum payable in money. In both cases there is a
drawer, a drawee, and a payee. Without acceptance, no action can be
maintained by the holder upon either against the drawer. The chief
points of difference are that a check is always drawn on a bank or
banker. No days of grace are allowed. The drawer is not discharged
by the laches of the holder in presentment for payment, unless he
can show that he has sustained some injury by the default. It is
not due until payment is demanded, and the statute of limitations
runs only from that time. It is by its face the appropriation of so
much money of the drawer in the hands of the drawee to the payment
of an admitted liability of the drawer. It is not necessary that
the drawer of a bill should have funds in the hands of the drawee.
A check in such case would be a fraud. [
Footnote 16]
All the authorities, both English and American, hold that a
check may be accepted, though acceptance is not usual. [
Footnote 17]
By the law merchant of this country the certificate of the bank
that a check is good is equivalent to acceptance. It implies that
the check is drawn upon sufficient funds in the hands of the
drawee, that they have been set apart for its
Page 77 U. S. 648
satisfaction, and that they shall be so applied whenever the
check is presented for payment. It is an undertaking that the check
is good them and shall continue good, and this agreement is as
binding on the bank as its notes of circulation, a certificate of
deposit payable to the order of the depositor, or any other
obligation it can assume. The object of certifying a check, as
regards both parties, is to enable the holder to use it as money.
The transferee takes it with the same readiness and sense of
security that he would take the notes of the bank. It is available
also to him for all the purposes of money. Thus it continues to
perform its important functions until in the course of business it
goes back to the bank for redemption and is extinguished by
payment.
It cannot be doubted that the certifying bank intended these
consequences, and it is liable accordingly. To hold otherwise would
render these important securities only a snare and delusion.
A bank incurs no greater risk in certifying a check than in
giving a certificate of deposit. In well regulated banks the
practice is at once to charge the check to the account of the
drawer, to credit it in "a certified check account," and when the
check is paid to debit that account with the amount. Nothing can be
simpler or safer than this process.
The practice of certifying checks has grown out of the business
needs of the country. They enable the holder to keep or convey the
amount specified with safety. They enable persons not well
acquainted to deal promptly with each other, and they avoid the
delay and risks of receiving, counting, and passing from hand to
hand large sums of money.
It is computed by a competent authority that the average daily
amount of such checks in use in the City of New York, throughout
the year, is not less than one hundred millions of dollars.
We could hardly inflict a severer blow upon the commerce and
business of the country than by throwing a doubt upon their
validity.
Page 77 U. S. 649
Our conclusions as to their legal effect are supported by
authorities of great weight. [
Footnote 18]
Congress has made them the subject of taxation by name.
[
Footnote 19]
But it is strenuously denied that the cashier had authority to
certify the checks in question. To this there are two answers:
1. In considering the question of his authority to buy the gold,
the evidence that he had given his checks for loans to his bank,
and for the proceeds of discounts, was fully considered. Our
reasoning and the authorities cited upon that subject apply here
with equal force. We need not go over the same ground again. The
questions whether the requisite authority was not inferable, and
whether the principle of estoppel
in pais did not apply,
should in this connection also have been left to the jury.
2. As before remarked, the organic law expressly allowed the
bank to buy coin and bullion. We have also adverted to the
provisions of the bylaws, that the cashier shall be responsible
"for the moneys, funds, and all other valuables of the bank," and
that "all contracts, checks, drafts, receipts &c., shall be
signed either by the cashier or president." The power of the bank
to certify checks has also been sufficiently examined. The question
we are now considering is the authority of the cashier. It is his
duty to receive all the funds which come into the bank, and to
enter them upon its books. The authority to receive implies and
carries with it authority to give certificates of deposit and other
proper vouchers. Where the money is in the bank he has the same
authority to certify a check to be good, charge the amount to the
drawer, appropriate it to the payment of the check, and make the
proper entry on the
Page 77 U. S. 650
books of the bank. This he is authorized to do
virtute
officii. The power is inherent in the office. [
Footnote 20]
The cashier is the executive officer, through whom the whole
financial operations of the bank are conducted. He receives and
pays out its moneys, collects and pays its debts, and receives and
transfers its commercial securities. Tellers and other subordinate
officers may be appointed, but they are under his direction, and
are, as it were, the arms by which designated portions of his
various functions are discharged. A teller may be clothed with the
power to certify checks, but this in itself would not affect the
right of the cashier to do the same thing. The directors may limit
his authority as they deem proper, but this would not affect those
to whom the limitation was unknown. [
Footnote 21]
The foundation upon which this liability rests was considered in
an earlier part of this opinion. Those dealing with a bank in good
faith have a right to presume integrity on the part of its
officers, when acting within the apparent sphere of their duties,
and the bank is bound accordingly.
In
Barnes v. Ontario Bank, [
Footnote 22] the cashier had issued a false
certificate of deposit. In the
Farmers' and Mechanics' Bank v.
Butchers' and Drovers' Bank, [
Footnote 23] and in
Mead v. Merchants' Bank of
Albany, [
Footnote 24]
the teller had fraudulently certified a check to be good. In each
case the bank was held liable to an innocent holder.
It is objected that the checks were not certified by the
Page 77 U. S. 651
cashier at his banking house. The provision of the act of
Congress as to the place of business of the banks created under it
must be construed reasonably. The business of every bank, away from
its office -- frequently large and important -- is unavoidably done
at the proper place by the cashier in person, or by correspondents
or other agents. In the case before us, the gold must necessarily
have been bought, if at all, at the buying or the selling bank or
at some third locality. The power to pay was vital to the power to
buy, and inseparable from it. There is no force in this objection.
[
Footnote 25]
It is also objected that each of the checks, after being
certified, required an additional stamp. The act of Congress
relating to the subject directs certified checks to be included in
the circulation of the bank for the purpose of taxation. [
Footnote 26] This is a conclusive
answer to the objection.
In
Brown v. London, [
Footnote 27] judgment in a suit upon two accepted bills
of exchange was arrested after verdict because "entire damages"
were given, and the count, upon one of the bills, failed to aver
that by the custom of merchants and others trading in England the
acceptor was obliged to pay. This was in 1671. Other decisions in
this class of cases, not less remarkable, are familiar to those
versed in the learning of the elder reports. The law merchant was
not made. It grew. Time and experience, if slower, are wiser law
makers than legislative bodies. Customs have sprung from the
necessities and the convenience of business and prevailed in
duration and extent until they acquired the force of law. This mass
of our jurisprudence has thus grown, and will continue to grow, by
successive accretions.
We have disposed of this case as it is before us.
How far it may be changed in its essential character, if at all,
by a full development of the evidence on both sides in the further
trial, which will doubtless take place, it is not for us to
anticipate.
Page 77 U. S. 652
The judgment below is reversed and a venire de novo
awarded.
Mr. Justice MILLER was not present at the argument of this case,
and did not participate in its decision.
[
Footnote 1]
§§ 22-27, 47, 50.
[
Footnote 2]
9 Metcalf 313.
[
Footnote 3]
13 Stat. at Large 278.
[
Footnote 4]
13 Stat. at Large 99.
[
Footnote 5]
Mores v. Conham, Owen 123; Anon., 2d Salkeld 522;
Coggs v. Bernard, 3d
id. 268;
Whitaker v.
Sumner, 20 Pickering 399, 405;
Thompson v. Patrick, 4
Watts 415; Story on Bailments § 324.
[
Footnote 6]
Supervisors v.
Schenck, 5 Wall. 784;
Knox Co.
v. Aspinwall, 21 How. 539;
Bissell v.
Jeffersonville, 24 How. 288;
Moran v.
Commissioners, 2 Black 722;
Gelpcke v.
Dubuque, 1 Wall. 203;
Mercer
Co. v. Hacket, 1 Wall. 93;
Mayor
v. Lord, 9 Wall. 414;
Royal British Bank v.
Turquand, 6 Ellis & Blackburn Q.B. & Ex. 327;
The
Farmers' Loan & Trust Co. v. Curtis, 3 Selden 466;
Stoney v. American Life Ins. Co., 11 Paige 635;
Society for Savings v. New London, 29 Conn. 174;
Commonwealth v. City of Pittsburg, 34 Pa.St. 497;
Commonwealth v. Allegheny County, 37
id. 287.
[
Footnote 7]
Philadelphia &
Baltimore Railroad Co. v. Quigley, 21 How. 209;
Green v. London Omnibus Co., 7 C.B.N.S. 290;
Life
& Fire Ins. Co. v. Mechanic Fire Ins. Co., 7 Wendell
31.
[
Footnote 8]
Ranger v. Great Western Railway Co., 5 House of Lords
Cases 86;
Thayer v. Boston, 19 Pickering 511;
Frankfort Bank v. Johnson, 24 Me. 490; Angel and Ames on
Corporations §§ 382, 388.
[
Footnote 9]
Swan v. British North Australasian Company, 7 Hurlstone
& Norman 603;
Hern v. Nichols, 1 Salkeld 289.
[
Footnote 10]
Dezell v. Odell, 3 Hill 216.
[
Footnote 11]
Farmers' & Mechanics' Bank of Kent Co. v. Butchers' and
Drovers' Bank, 16 N.Y. 133;
Welland Canal Co. v.
Hathaway, 8 Wendell 480
[
Footnote 12]
2 Hill 465.
[
Footnote 13]
Supra.
[
Footnote 14]
38 Barbour Supreme Court 536;
S.C., affirmed, 34 N.Y.
30.
[
Footnote 15]
1 Salkeld 289.
[
Footnote 16]
Grant on Banking 89, 90;
Keene v. Beard, 8 C.B.N.S.
373;
Serle v. Norton, 2 Moody & Robinson 404, n.;
Boehm v. Sterling, 7 Term 430;
Alexander v.
Burchfield, 7 Manning & Granger, 1067.
[
Footnote 17]
Robson v. Bennett, 2 Taunton 395; Grant on Banking 89;
Ch. on Bills, 10 ed. 261;
Boyd v. Emmerson, 2 Adolphus
& Ellis 184;
Kilsby v. Williams, 5 Barnewall &
Alderson 816; Story on Promissory Notes §§ 489, 490.
[
Footnote 18]
Bickford v. First National Bank, 42 Ill. 238;
Willets v. Phoenix Bank, 2 Duer 121;
Barnet v.
Smith, 10 Foster N.H. 256;
Meads v. Merchants' Bank,
25 N.Y. 146;
Farmers' and Mechanics' Bank v. Butchers' and
Drovers' Bank, 4 Duer 219;
aff'd, 14 N.Y. 624;
Brown v. Leckie, 43 Ill. 497;
Girard Bank v. Bank of
Penn Township, 39 Pa.St. 92.
[
Footnote 19]
13 Stat. at Large 278.
[
Footnote 20]
Wild v. Bank of Passamaquoddy, 3 Mason 506;
Burnham
v. Webster, 19 Me. 234;
Elliot v. Abbot, 12 N.H. 556;
Bank of Vergennes v. Warren, 7 Hill 91;
Lloyd v. West
Branch Bank, 15 Pa.St. 172;
Badger v. Bank of
Cumberland, 26 Me. 428;
Bank of Kentucky v. Schuylkill
Bank, 1 Parsons' Select Cases 182;
Fleckner v. Bank of the
United States, 8 Wheat. 360.
[
Footnote 21]
Commercial Bank of Lake Erie v. Norton, 1 Hill 501;
Bank of Vergennes v. Warren, 7
id. 94;
Beers
v. Phoenix Glass Company, 14 Barbour 358;
Farmers' and
Mechanics' Bank v. Butchers' and Drovers' Bank, 14 N.Y. 624;
North River Bank v. Aymar, 3 Hill 262, 268;
Barnes v.
Ontario Bank, 19 N.Y. 156, 166.
[
Footnote 22]
19 N.Y. 156.
[
Footnote 23]
14 N.Y. 624;
S.C., 16 N.Y. 133.
[
Footnote 24]
25 N.Y. 146.
[
Footnote 25]
Bank of Augusta v.
Earle, 13 Pet. 519;
Pendleton v. Bank of
Kentucky, 1 T.B.Munroe 182.
[
Footnote 26]
13 Stat. at Large 278, ch. 173, § 110.
[
Footnote 27]
1 Levinz 298.
MR. JUSTICE CLIFFORD (with whom concurred MR. JUSTICE DAVIS),
dissenting.
Persons uniting to form an association for carrying on the
business of banking are required, as a condition precedent to their
right to do so, to make an organization certificate specifying,
among other things, the name assumed by the association, the place
where its operations of discount and deposit are to be conducted,
designating the state, territory, or district, and also the
particular county and city, town or village, and shall transmit the
same, duly acknowledged, to the Comptroller of the Currency, to be
recorded and carefully preserved in his office, and the provision
is that the usual business of the association shall be transacted
at an office or banking house located in the place specified in
their organization certificate. [
Footnote 2/1]
Such an association, when duly organized, have a succession by
the name designated in the organization certificate for the period
of twenty years, and they may adopt a common seal, may make
contracts, sue and be sued, complain and defend in any court of law
or equity as fully as natural persons, and may elect or appoint
directors, and may exercise all such incidental powers as may be
necessary to carry on the business of banking. They may also, by
their board of directors, appoint a president, vice-president,
cashier, and other officers, and define their duties, and they may,
by their directors, dismiss said officers, or any of them, at
pleasure, and appoint others to fill their places. By the terms of
the act, the directors shall consist of "not less than five," and
the express enactment is that the affairs of the association shall
be managed by the directors.
Evidence that that requirement is regarded as one of
importance
Page 77 U. S. 653
and that it is intended to be peremptory is also found in the
provision prescribing the qualifications of directors as well as in
the one defining their duties. None but citizens of the United
States are eligible under any circumstances, and the further
regulation is that three-fourths of the number must have resided in
the state, territory, or district one year next preceding their
election, and that they must be residents of the same during their
continuance in office.
Besides these guarantees of fidelity, the additional requirement
is that each director shall own in his own right at least ten
shares of the capital stock, and when appointed or elected shall
make oath that he will, so far as the duty devolves on him,
diligently and honestly administer the affairs of the association,
and will not knowingly violate, or willingly permit to be violated,
any of the provisions of the act under which the association was
formed. [
Footnote 2/2]
Organized under that act, as both of these banks were when they
assumed the name and character of national associations, they are
both subject to its provisions and bound by its regulations.
Three checks were held by the plaintiffs, each dated Boston,
February 28th, 1867, and signed Mellen, Ward & Co., with the
words "Good -- C. H. Smith, cashier" written across the face of the
checks. Separately described, they read as follows: (1) "State
National Bank pay to J. K. Fuller, cashier, or order, two hundred
and fifty thousand dollars;" (2) "State National Bank pay to J. K.
Fuller, or order, two hundred and seventy-five thousand dollars;"
(3) "State National Bank pay to Gold or bearer seventy-five
thousand dollars."
Smith was the cashier of the defendant bank, and the plaintiffs
claimed that the defendants, inasmuch as Mellen, Ward & Co. had
failed, were liable to pay the whole amount, as the words written
across the face of the respective checks were in the handwriting of
their cashier, and the defendants refusing to pay the same as
requested, the plaintiffs commenced an action of assumpsit against
them in the circuit court, the declaration containing eleven
counts.
Page 77 U. S. 654
Eight of the counts are founded upon the checks, of which it
will be sufficient to refer to the first, which alleges in
substance that the signers of the checks made the same to enable
the defendant bank to obtain from the plaintiff bank certain gold
certificates held by the latter, of great value, and that the
plaintiff bank received the checks and delivered to the defendant
bank the gold certificates, and that the defendants, in
consideration thereof, declared that the checks were good, and
promised to pay the same on presentment, as more fully set forth in
the record.
Two of the counts, to-wit the ninth and tenth, allege a sale and
purchase of the gold certificates for the sum of six hundred
thousand dollars, and that the defendants have refused to pay as
they promised. Superadded to these is a count for money had and
received for the same amount, which is in the usual form. Process
was issued and served, and the defendants appeared and pleaded the
general issue, and upon that issue the parties went to trial.
Pursuant to the usual course, the plaintiffs introduced the
checks described in the declaration and examined the officers of
their bank in support of the cause of action therein set forth.
They also read from the books of the defendant bank, produced for
their use by the order of the court passed on their motion, the
fifth of the articles of association of that bank, and article
seventeen of their bylaws. Besides the officers of their own bank,
they also examined the bookkeeper of the defendant bank in respect
to the account of their cashier as exhibited in the general ledger
of the bank.
Twenty-two of the cashiers of the national banks doing business
in that city were also examined by the plaintiffs in respect to the
powers of a cashier as exemplified in the usage there of such
institutions, no one of whom testified that he, as cashier of a
national bank, ever certified as good the check of a third person
under any circumstances.
Certain other exhibits were also introduced in the course of the
examination or cross-examination of the witnesses, as for example
the letter of the president to the Comptroller of the Currency, and
the exchange slip, so called, showing that
Page 77 U. S. 655
the checks in suit were not sent to the clearing-house with the
other transactions of that day, and that they remained in the hands
of the paying teller until the president took the same the next day
to present them to the State Bank.
No testimony was introduced by the defendants, but the court,
when the plaintiffs rested, on the prayer of the defendants,
instructed the jury that the plaintiffs, on the whole evidence,
were not entitled to recover, and the jury, under that instruction,
returned a verdict for the defendants. Exceptions were taken by the
plaintiffs to that ruling, and they sued out a writ of error and
removed the cause into this Court.
Power to grant a peremptory nonsuit is not vested in a circuit
court, but the defendant may if he sees fit, at the close of the
plaintiff's case move the court to instruct the jury that the
evidence introduced by the plaintiff is not sufficient to warrant
the jury in finding a verdict in his favor, and that their verdict
should be for the defendant, as was done in this case. Such a
motion is not one addressed to the discretion of the court, but it
presents a question of law which it is the duty of the court to
decide in view of the whole evidence, and the decision of the court
in granting or refusing the motion is as much the subject of
exceptions as any other ruling of the court in the course of the
trial.
In considering the motion, the court proceeds upon the ground
that the facts stated by the witnesses examined by the plaintiff
are true, but that those facts as proved, with every inference
which the law allows to be drawn from them, would not warrant the
jury in finding a verdict in his favor. When viewed in that light,
the plaintiff's case, as shown in the evidence, presents a question
of law, and it is well settled by the decisions of this Court that
it is the duty of the circuit court to give the instruction
whenever it appears that the evidence is not legally sufficient to
serve as the foundation of a verdict. [
Footnote 2/3]
Founded as the ruling was upon the assumption that the cashier
of the State Bank had no authority under the circumstances
Page 77 U. S. 656
to certify the checks in suit, it becomes necessary to examine
that question. Whether he had such authority or not presents a
mixed question of law and fact dependent upon the evidence and the
legal principles applicable to the case.
Testimony was introduced by the plaintiffs showing that the
president of the plaintiff bank exercised very comprehensive
powers, including the loan of money, discounts, and the general
superintendence of all the affairs of the bank, he reporting and
holding himself responsible to the directors for the performance of
his duties.
On Saturday, the twenty-third of February, 1867, the cashier of
the plaintiff bank informed the president, as the latter testified,
that Mellen, Ward & Co. were going to purchase in New York a
large amount of gold and that they desired to know whether the bank
would take it as it arrived, and pay for it at the rate of $125 in
currency for every $100 of gold. Inquiries were made upon the
subject by the president and explanations were given to him by the
cashier, but the result was that the president told the cashier
that he might take the gold and pay for it on the same terms that
he had taken gold on several previous occasions from the same
parties.
Reference is there made to the conceded fact that those parties
had at several times within two or three months previous brought
gold into that bank and received currency for it on the same terms
as those proposed to the cashier, and the president testified that
he told the cashier that he might take the gold as it arrived on
the same terms, and that he, the cashier, might give the parties
the right to come into the bank at any time afterwards
"and take the gold from the bank, paying the bank for the gold
$125 in currency for every $100 in gold, and such premium or
compensation as would be equivalent to interest,"
taking no obligation or note of any kind, but to rely entirely
on the purchase of the gold.
Two hundred thousand dollars of the gold arrived on the
twenty-sixth of the same month, and the president states
Page 77 U. S. 657
that he was informed by the cashier on that day that it was in
the Second National Bank, in gold certificates. Not being familiar
with such certificates, he advised the cashier that he had better
go to the office of the assistant treasurer and ascertain whether
the certificates were correct before taking them, as previously
arranged. On the following day, two hundred thousand dollars more
in similar certificates arrived, and similar directions were given
by the president to the cashier. Due inquiry was made at that
office in both cases, and all of the certificates, amounting to
four hundred thousand dollars, were received and transferred to the
plaintiff bank.
Correspondence ensued between the comptroller of the currency
and the president of the bank, and the president, in reply to the
letter of the Comptroller, stated that on the twenty-sixth of the
same month, the cashier of the bank made an advance to Mellen, Ward
& Co. of two hundred and fifty thousand dollars in legal tender
notes and currency upon two hundred thousand dollars in gold
certificates, that no note or security was taken for the amount of
the advance except a check signed by the parties for fifty thousand
dollars, to be kept in the teller's cash in order to balance his
cash account; that on the following day, a similar advance upon
gold (certificates) was made by the cashier for the same amount to
the same parties and in the same manner in all particulars, no note
or obligation being taken for the amount so advanced.
Prior to the first of these transactions, the same parties, as
the president states in the communication, had deposited in the
bank the sum of ninety thousand dollars in gold, and received
therefor currency at the rate of $125 for $100 in gold, the bank
taking no note or obligation on account of the transaction.
Fuller, the cashier, was also examined, and he testified that
the inquiry whether the bank would take the gold on its arrival and
pay for it was made of him by Carter, the junior member of that
firm, and that he, the witness, stated to him to the effect that he
could not answer the question,
Page 77 U. S. 658
that he should have to consult the president in regard to it,
that he did consult the president of the bank, and that the
president told him that if it would not interfere with their
ability to make their regular discounts, he might take the gold on
the same terms as the bank had taken gold of those parties on
previous occasions. Notice was accordingly given to Mellen, Ward
& Co. by the cashier, as he states, either on that day or on
the Monday following, that the bank would afford them the
accommodation.
Gold had been taken by the bank of that firm before, and the
cashier testified that
"they asked if the bank would take gold and pay for it at such
time as either party might wish -- either the firm of Mellen, Ward
& Co. or the Merchants' Bank -- at $125 currency for $100 gold,
they paying the bank for the trouble &c., a sum equal to
the interest on the amount of the currency loaned, and the
witness in response to that question, after having consulted the
president,
said we would do it."
Evidently both parties understood that the deposit of the gold
with the bank was only for a brief period, and in confirmation of
that theory the cashier also testified that Carter said to him, in
their preliminary interview, that they, the firm, wanted the
bank
"to take the gold and pay for it, and that it would be taken
away again in a few days, mentioning perhaps the last day of the
month or the first day of the following month."
He also admits that when the first installment was received, he
took a check from the parties for fifty thousand dollars, but he
says it was without the knowledge of the president.
On the twenty-eighth of February, which was the last day of the
month, at half-past one o'clock, Carter and the cashier of the
defendant bank called at the plaintiff bank and went together to
the desk of the cashier, they being outside of the counter. Carter
said, "We have come for the gold." Smith, the cashier of the
defendant bank, said, "We have come in to get an amount of gold,"
and that he would pay for it by certifying the two checks which he
held in his hand when he saw that the gold was all right.
Page 77 U. S. 659
Responsive to that remark, the cashier of the plaintiff bank
said step to the paying teller, and he did so, passing on the
outside of the counter to that desk, the cashier of the plaintiff
bank passing to the same desk on the inside of the counter, and
that the latter said to the paying teller, the cashier of the State
Bank has come to take some gold, and the paying teller immediately
handed to the cashier of the plaintiff bank the package containing
eighty-four gold certificates of five thousand dollars each, saying
there are eighty-four in the package, to which Smith, the cashier
of the State Bank, standing outside the counter, replied that is
the amount wanted, that is the amount of these checks. They were
passed out to Smith, and he certified the two checks and handed
them to the cashier of the plaintiff bank. Both were certified in
the bank by the cashier of the State Bank subsequent to the
delivery to him of the gold certificates, and not until he had
examined the certificates, and the president, in his letter to the
Comptroller of the Currency, states that the two checks, amounting
to $525,000, were certified as good "on the spot" by the cashier of
the State National Bank.
Davis, the paying teller of the plaintiff bank, was also
examined by the plaintiffs, and he testified that the cashier on
that day came down to his desk, on the inside of the counter, the
cashier of the defendant bank, accompanied by Carter, being on the
outside; that he, the paying teller, handed to the cashier of his
bank eighty-four gold certificates of five thousand dollars each;
that the cashier counted the same and passed them over the counter
to the cashier of the State Bank; that the cashier of the latter
bank handed back two checks drawn by Mellen, Ward & Co. on the
State National Bank, one for $250,000, the other for $275,000,
certified "Good -- C. H. Smith, cashier." They were handed to the
cashier and by him to the paying teller, and by the latter to the
receiving teller to be added to his account for that day.
Later on the same day, and after the cashier had left the bank,
Ward, of the firm of Mellen, Ward & Co., called at the bank and
said to the paying teller, "We shall want
Page 77 U. S. 660
some more gold," and immediately left the bank, and in a few
minutes the cashier of the State Bank and Carter of the same firm
came in, and the former handed to the paying teller a check for
seventy-five thousand dollars, signed by Mellen, Ward & Co.,
with the words, "Good -- C. H. Smith, cashier," written across the
face of the check, which is the third check described in the
declaration. Carter wrote the check in the bank at the desk for
customers, situated outside the counter, and it was certified at
the same time by the cashier of the State Bank before it was handed
to the paying teller.
The check, as the teller testified, called for $60,000 in gold,
and he states that he handed thirty thousand, to-wit, $10,000 in
gold certificates and four bags of gold of five thousand each, to
Smith, passing it over the counter, and that Carter took the gold
and carried it away, but whether or not he also took the gold
certificates he cannot state. Thirty thousand remained to be paid,
and after Carter left, he, the teller, took from the vault of the
bank six bags of gold, of five thousand each, and placed the same
outside the counter in charge of Smith, he being the only person
present. Some third person, however, came in while the gold was
there, and the impression of the witness is that it was Mellen, of
the firm of Mellen, Ward & Co., and that he assisted in
carrying it away from the bank.
Evidently the first question upon the merits is whether the
State Bank received the gold or the gold certificates withdrawn
from the Merchants' Bank when the checks in suit were given, for if
they did or if they authorized their cashier to certify the same,
they are clearly liable for the whole amount claimed by the
plaintiffs. Evidence to show that they authorized their cashier to
certify the checks is entirely wanting, and it is quite obvious
from the whole case that neither the State Bank nor any of its
officers except the cashier had the slightest knowledge of the
transaction or of any of its incidents until the president of the
plaintiff bank, at a quarter past two in the afternoon of the
following
Page 77 U. S. 661
day, presented the checks to the president of the State Bank for
payment.
When presented, the president of the State Bank took them and
read them, and immediately replied that they had not authorized
their cashier to certify checks, to which the president of the
plaintiff bank rejoined in substance and effect as follows: "He has
certified checks, and those checks were given to the Merchants'
Bank for gold, the property of that bank, delivered to him, and
that he," the president of that bank, "wanted payment for that
gold." He did not pretend that they had conferred any actual
authority upon the cashier to certify the checks, but evidently
based his claim upon the ground of an implied legal liability, and
there is not a scintilla of evidence in the case tending to show
any express authority on the part of the cashier to certify the
checks.
Suppose that is so, still it is suggested that there is some
evidence tending to show that the gold and gold certificates, when
they were withdrawn from the Merchants' Bank, were transferred to,
and actually deposited in, the defendant bank, and the argument is
that the circuit court erred in not submitting that question to the
jury.
Before the president of the plaintiff bank visited the president
of the State Bank, he called on the cashier of that bank, and
whatever evidence there is in the case applicable to the issue,
which it is supposed should have been submitted to the jury,
consists of the conversation which took place between those
officers during that interview before the other officers of the
defendant bank knew anything of the transaction.
Just after one o'clock of that day, the president of the
plaintiff bank called on the cashier of the State Bank with the
checks in his hands, and he states the conversation as follows:
"I said to him, I thought you were coming in to pay the gold for
those checks early in the morning."
"Question. -- To pay the gold?"
"Answer. -- To pay the money. I didn't say gold; to pay the
money on those checks early in the morning. The cashier replied,
Yes, I am going out
Page 77 U. S. 662
now to attend to it and get the money. Get the money? said I;
didn't you have the money -- the gold? Were not the gold
certificates delivered to you? Yes, said he, I had them here, but
they are not here now; I am going out to get it, and will come in
and attend to it. I spoke rather abruptly, and said he should do it
immediately. He looked up and said, You hold the State Bank. I came
back and laid the checks on the desk of the teller."
Grave doubts were entertained by the circuit judges whether the
evidence, if it had been objected to, would have been admissible,
as it can hardly be maintained that the cashier, under the
circumstances, was the agent of the bank to make any such admission
in respect to a past transaction, and still graver doubts were
entertained whether the supposed admission was understandingly
made, as it was obvious that the cashier was abruptly and
unexpectedly arraigned for his unauthorized and illegal acts in
terms of complaint and in tones of accusation and command, but the
judges were quite satisfied, even if the language as reported was
deliberately employed, that the statement was untrue; that the
admission, even if it was made, was contrary to the fact; that
every dollar of the gold and of the gold certificates went directly
from the Merchants' Bank to the office of the assistant treasurer
for the benefit of the drawers of the checks, as the circumstances
abundantly prove.
Regarded in that light, it is settled law that the remark of the
cashier was entitled to no weight, as it was an admission contrary
to the fact. Direct proof to that effect was not introduced in this
case, as the defendants did not introduce any testimony, but the
circumstances shown in evidence were equally persuasive and
convincing, leaving no doubt in the mind of the circuit court that
the whole fund withdrawn from the Merchants' Bank was transferred
directly to the office of the assistant treasurer to supply a
corresponding deficiency in the deposits in that institution which
had been embezzled and loaned to the persons whose firm name was
signed to the checks.
Some of the circumstances referred to have already been
Page 77 U. S. 663
mentioned, and there are many others reported in the transcript
which tend very strongly in the same direction. Enough is exhibited
in the record to show beyond all doubt that Mellen, Ward & Co.
were extensively engaged in speculations; that they were largely
interested in copper stocks; that in their first interview with the
cashier of plaintiff bank, they disclosed to him the fact that they
only wanted the bank to take the gold for a few days, naming the
day when they would desire to withdraw the same, and the
arrangement as completed with the cashier, and as sanctioned by the
president of the bank, gave them the right to call for that amount
of gold whenever they might see fit by paying for the same at the
same rate, and an additional sum equal to interest from the time
the gold was deposited in the bank to the time it should be
withdrawn. Authority was given to the cashier to take the gold as
it arrived, on the terms proposed, and he was told at the same time
that the parties depositing it would be allowed to call for the
same amount on the same terms, paying also for the trouble a sum
equal to interest while it remained in the bank.
Weighed in the light of these explanations, it must require the
exercise of much incredulity not to see in the acts, conduct, and
declarations of the parties plenary proof that the gold and gold
certificates for which the checks were given were withdrawn from
the bank in pursuance of that arrangement. First Carter appears,
then Ward, then Carter again, and finally Mellen, the three being
all the members of the firm.
They had informed the cashier through their junior partner that
the gold "would be taken away" on the last day of the month or the
first day of the following month, and on the last day of the month
Carter called and said "we have come for the gold," and when Ward
came at a later hour on the same day to give notice that their
necessities were not fully supplied, he made no inquiry, nor did he
submit any proposition, but said, "we shall want some more gold,"
and immediately left, showing conclusively that the contract had
been previously made; and finally Mellen, the
Page 77 U. S. 664
senior partner, called to assist in carrying away the last
thirty thousand dollars, which, with the thirty thousand previously
taken, was delivered by the teller in the absence both of the
cashier and of the president.
Loaned and withdrawn as the gold and gold certificates were but
for one day, the president, the next forenoon, when he found that
the same were not returned nor the amount of the checks paid,
immediately took the matter into his own hands. He at once, or just
before one o'clock, having previously
"heard that there was
trouble at the sub-treasury," called upon the cashier of the
State Bank, and failing to obtain satisfaction there, he proceeded,
at a quarter before two on the same afternoon, to the room occupied
by the president and directors of that bank, and he states that he
found the president of the bank and two or three other persons
present. Much of what was said on the occasion has already been
narrated, and need not be repeated.
Two of the persons present were the president of the State Bank
and his predecessor in that office, and the president of the
plaintiff bank testified that they were considerably excited; that
he informed them that
he had just heard that there was trouble
at the sub-treasury, that he thought
they had better go to
that office, adding that if they did,
perhaps they would
find their gold there, offering at the same time to go with
them if they desired him to do so, and it appears
that he and
those two persons went to the room of the assistant treasurer,
and that he introduced them to that officer, saying that they had
come to see
if a large amount of gold had not been placed
there to the credit of the State Bank.
What further was said or done on the occasion does not appear,
as the plaintiffs' testimony stopped there in respect to that
interview and none was introduced by the defendants. Sufficient,
however, was given to satisfy the court beyond doubt that every
dollar of the gold and gold certificates was transferred to that
institution for the benefit of the drawers of the checks, and that
no part of the same was ever received by the defendant bank.
Courts of justice have sometimes said that it is necessary
Page 77 U. S. 665
in all cases to leave the question to the jury if there is any
evidence, even a scintilla, in support of the issue, but it is well
settled law that the question for the judge is not whether there is
literally no evidence, but whether there is none that ought
reasonably to satisfy the jury that the fact sought to be
proved is established. [
Footnote
2/4]
Judges are no longer required to submit a case to the jury
merely because some evidence has been introduced by the party
having the burden of proof, unless the evidence be of such a
character that it would warrant a jury in finding a verdict in
favor of that party. [
Footnote
2/5]
Formerly it used to be held, said the court in that case, that
if there was what is called a "scintilla" of evidence in support of
a case, the judge was bound to leave it to the jury, but that a
course of recent decisions has established a more reasonable rule,
to-wit, that in every case, before the evidence is left to the
jury, there is or may be a preliminary question for the judge not
whether there is literally no evidence, but whether there is any
upon which a jury can properly proceed to find a verdict for the
party producing it, upon whom the onus of proof is imposed.
[
Footnote 2/6]
Apply that rule to the present case and it is clear to a
demonstration that the ruling was correct, as there is no evidence
reported which would warrant a jury in finding that the gold or
gold certificates or any part of the same ever went into the
defendant bank. [
Footnote 2/7]
Express authority in the cashier, either from the directors or
under any act of Congress, to certify the checks of third persons
is not pretended, and it appearing that no part of the funds
withdrawn from the plaintiff bank was ever received by the
defendant bank or that they had any knowledge of the transaction
prior to the interview between the presidents of the respective
banks, the plaintiffs are forced
Page 77 U. S. 666
to invoke usage as the source of the cashier's authority to
certify the checks, or to put their case, as in the opinion of the
court, upon the legal proposition that the power of the cashier to
perform those acts is inherent in the office; that the certificates
of the cashier import on their face that he was authorized to
exercise that power in behalf of the bank, and that it makes no
difference whether the acts were performed in the banking house of
the institution or elsewhere, provided it appears that he added to
his signature the word "cashier" at the time he certified the
instruments.
Whether a usage exists or not to confer power to do an act which
otherwise would not be authorized is a question of fact dependent
upon the evidence, and he who alleges that such a usage exists must
prove it unless it is general and of such long standing that it has
become incorporated into, and may be regarded as, a part of the
commercial law, which cannot be pretended in this case, as it
clearly appears that no such usage exists in the state where the
transaction took place. No such evidence was introduced, and the
settled rule of law in the highest judicial tribunal of the state
is that the cashier of a bank possesses no such authority unless it
is specially delegated to him by the directors, which is in exact
accordance with the rule prescribed in the act of Congress giving
to the directors the power to appoint or elect a cashier and to
manage the affairs of the institution. [
Footnote 2/8]
Such a power, said the court in that case -- that is, the power
of certifying checks -- is in fact a power to pledge the credit of
the bank to its customers, and is a power which, by the
constitution of a bank, can alone be exercised by its president and
directors unless specially delegated by them, and consequently it
cannot be implied as a resulting duty or authority in
any
individual officer. Evidence of usage, therefore, cannot
confer any original, inherent, and implied power to certify such
instruments. Checks had been certified in that case by the teller,
but the rule as laid down is equally applicable
Page 77 U. S. 667
to cashiers, as the court said that the authority is vested in
the president and directors, and that it cannot be implied as a
resulting duty
in any individual officer, which includes
the cashier as well as the teller. [
Footnote 2/9]
Established as that rule was in that state more than twenty-five
years ago by the unanimous decision of the highest court of the
state, it is not strange that no cashier in the state could be
found who would testify that there was any such usage as is
supposed by the plaintiffs. They called twenty-two cashiers,
including the cashier of their own bank, but they did not venture
to ask the question at all whether there was any such usage, though
one or more of the number volunteered to say that none such
existed, which was equally well proved by the silence of all the
others. Proof of usage authorizing a cashier to certify checks,
even if such proof would confer such an authority, which is denied,
is certainly wanting, as there is not a scintilla of evidence to
that effect to be found in the record.
Evidence of usage is admissible in mercantile contracts to prove
that the words in which the contract is expressed, in the
particular trade to which the contract refers, are used in a
particular sense and different from the sense which they ordinarily
import, and it is also admissible in certain cases for the purpose
of annexing incidents to the contract in matters upon which the
contract is silent, but it is never admissible to make a contract
or to add a new element to the terms of a contract previously made
by the parties. Such evidence may be introduced to explain what is
ambiguous and doubtful, but it is never admissible to vary or
contradict what is plain. Where the language employed is technical
or ambiguous, such evidence is admitted for the purpose of defining
what is uncertain, but it is never properly admitted to alter a
general principle or rule of law, nor to make the legal rights or
liabilities of the parties other or different from what they are by
the common law. [
Footnote
2/10]
Page 77 U. S. 668
Whether such evidence is admissible or inadmissible to prove
such an authority, it is quite clear that there was none in this
case of any kind, and certainly none which would have warranted the
jury in finding that the cashier of the defendant bank had any
authority whatever to bind his bank by his certificates that the
checks were good.
Interrogatories, however, were put to the cashiers examined as
witnesses touching their powers in respect to other transactions,
and they testified that the business at the clearing-house was
usually conducted by the cashier of the bank, and that in adjusting
balances occurring there, the cashiers whose banks belonged to that
association were accustomed to draw checks for that purpose, and
that they were in the habit of receiving each other's checks in
such adjustments as the checks of their respective banks; and they
also testified that they bought and sold New York funds, as their
banks redeemed very largely in that city, which created a necessity
for the daily use of such funds in conducting the usual and regular
operations of the banks; but the circuit court was of the opinion
that the evidence was entirely unimportant in this case, as there
was no evidence of any usage showing that the cashiers were
authorized to certify the checks of third persons, and the judges
were confirmed in that conclusion by the fact that it had long been
the settled law of the state that no individual officer of a bank
possessed any such authority.
Giving full effect to the usage proved, it only shows that a
cashier may borrow money of the other banks in the settlement of
balances through the clearing-house, and that he may sign the
checks given for the same, and that he may buy and sell New York
funds -- that is, he may buy for use in redeeming their bills, and
he may sell the same when they have an excess beyond what is
necessary for that purpose; but the evidence, in the opinion of
that court, had no
Page 77 U. S. 669
tendency to prove that the cashier of a national bank might
certify the checks of a third person, as in this case, as the
settled law everywhere is that a power evidenced by usage must be
considered as defined and limited by the usage. [
Footnote 2/11]
Nothing remains but to examine the question whether there is any
such inherent power in the office of a cashier as is supposed by
the plaintiffs, as it is clear that the act of Congress confers no
such power and that there is no proof of any such usage in the case
even if it be admitted that evidence of usage would be sufficient
to establish that theory. Special reference to the bylaws of the
bank is unnecessary, as it is not pretended that they confer any
such power upon the cashier, and there is not a particle of
evidence that the directors, directly or indirectly, ever gave him
any such power.
Before attempting to answer the inquiry what are the usual and
ordinary duties of a cashier, it becomes necessary to look somewhat
more closely at the circumstances which attended the transaction at
the time the checks were certified. None of the checks was signed
by the drawers or certified by the cashier in the banking house of
the defendants. On the contrary, the cashier left his own bank and
went to the banking house of the plaintiffs, and there, in the
presence of the cashier of the plaintiffs, who knew full well what
the arrangement was between his bank and the signers of the checks
and that by virtue of that arrangement they had a right to withdraw
from the bank on that day that amount of gold and gold
certificates, and that he as cashier was fully authorized by the
president of his bank to deliver it to them on the terms and
conditions specified in the arrangement.
He knew also that he himself, as cashier, had no authority to
certify checks; that the law of the state did not authorize such an
act; that he had never done such an act; that it had never been
done by the cashier of a national bank in that city; that the act
of certifying these checks had not been
Page 77 U. S. 670
done in the usual course of business nor in the presence of the
directors of the defendant bank, as he testifies that the first two
checks, amounting to five hundred and twenty-five thousand dollars,
were certified "in the bank after the delivery and examination of
the certificates," and the president of the bank, in his letter to
the Comptroller of the Currency, states that they were "certified
as good on the spot by the cashier of the State National Bank."
Known to the cashier of the plaintiff bank as all the antecedent
circumstances were, the judges of the circuit court did not
entertain a doubt that he knew full well that the gold and gold
certificates were withdrawn for the benefit of the drawers of the
checks and that the cashier of the defendant bank certified the
checks as a mere surety or guarantor. Unmistakably he knew that the
funds were withdrawn only for a day, for he testified that he was
informed when the arrangement was made that the same would be taken
away on the last day of the month or the first day of the following
month, and the president, in his interview with the cashier of the
defendant bank the next day, just before one o'clock, opened the
conversation by saying, "I thought you were coming in to pay the
gold or the money on those checks early in the morning." Both the
president and cashier of the plaintiff bank knew what that
arrangement was, and the cashier also knew all the circumstances
which attended the execution of the checks and the delivery of the
funds. Actual knowledge of all the circumstances on the part of the
cashier of the plaintiffs is fully proved, and if he wanted more
information, he knew that the means of knowledge were at hand, as
the cashier of the State Bank was there in his presence, and that
if he was not satisfied with his answers, he could ascertain the
whole truth from the directors.
Suppose it be conceded for the sake of the argument that the
checks were negotiable instruments, standing upon the same footing
as bills of exchange and promissory notes, still the plaintiffs
cannot recover if the cashier had no power to execute the
certificates, as all the facts and circumstances
Page 77 U. S. 671
were known to the cashier of their bank. Endorsees of such
negotiable instruments for value in the usual course of business
are not obliged to make inquiries, as was held in
Goodman v.
Simonds, [
Footnote 2/12] but
it was also held in that case and is believed to be settled law
everywhere that an endorsee in such a case must not willfully shut
his eyes to the means of knowledge which he knows are at hand, for
the reason that such conduct is equivalent to notice, and is
plenary evidence of bad faith. [
Footnote 2/13]
Precisely the same rule was laid down by Baron Parke in the case
of
May v. Chapman, [
Footnote
2/14] and the same rule has been applied by this Court in the
case of
The Lulu, [
Footnote
2/15] decided at the last term.
He knew that he himself had no authority to do such an act as
cashier; that the law of the state forbade it; that no cashier of a
national bank in that city had ever exercised any such authority,
and that the means of ascertaining whether the cashier of the
defendant bank had such authority were at hand, and the rule under
such circumstances is well settled that the party must inquire
before assuming to act or take the risk that the necessary
authority exists.
Examined in the light of the undisputed circumstances, the case
is as strong for the defendants as it would be if the defect of
authority had been apparent on the face of the instruments, as it
in fact was to one having such knowledge. Where the defect or
infirmity appears on the face of the instrument, the question
whether the party who took it had notice or not is a question of
law, and must be determined by the court as matter of construction.
[
Footnote 2/16]
Unable to maintain the suit upon these grounds, the plaintiffs
are forced back to the grounds assumed by their president in his
first interview with the president of the defendant bank, when he
said in effect that your cashier has certified those checks and I
want payment for the gold,
Page 77 U. S. 672
and to that it comes at last. Undoubtedly the cashier of the
defendant bank certified the checks, but the circumstances show
that the cashier of the plaintiff bank must have known that he did
so without the knowledge of the directors, and if the cashier of
the defendant bank had no authority, and the cashier of the
plaintiff bank knew it, it is clear to a demonstration that the
defendant bank is not liable. Circumstances, altogether
inconclusive, if separately considered, may, by their number and
joint operation, especially when corroborated by moral
coincidences, be sufficient to constitute the most convincing and
conclusive proof. [
Footnote
2/17]
Repeated decisions of this Court have determined the question
that the power to certify the checks of third persons in behalf of
the corporation is not inherent in the office of the cashier of a
bank, and also that the exercise of such a power is not within the
scope of his usual and ordinary duties.
Cashiers of a bank are held out to the public as having
authority to act according to the general usage, practice, and
course of business conducted by the bank, and their acts, within
the scope of such usage, practice, and course of business, will in
general bind the bank in favor of third persons possessing no other
knowledge. [
Footnote 2/18]
So where a contract was made by the president and cashier of a
bank with the endorser of a promissory note due to the bank that he
should be discharged in a certain event, this Court held that it
was not a part of their duty to make such a contract and that they
had no power to bind the bank except in the performance of their
ordinary duties, which was a much stronger case than the one before
the Court, as the president of the bank joined with the cashier in
making the contract. [
Footnote
2/19]
His ordinary duties are quite extensive, but it is settled law
in this Court that they do not comprehend the making of a contract
which involves the payment of money without
Page 77 U. S. 673
an express authority from the directors unless it be such as
relates to the usual and customary transactions of the bank.
[
Footnote 2/20]
Authority to certify the checks in this case, except what is
supposed to be implied, is not pretended, and if it were, the
theory could not be supported for a moment, as there is no such
evidence reported and none such was introduced.
Recurring to the two principal checks, it will be seen that the
plaintiff bank or their cashier, which is the same thing, is the
payee, and inasmuch as the same were certified in the presence of
the cashier of the plaintiffs, who knew all the circumstances, the
suggestion that they are innocent holders as against the defendants
cannot be supported. If a bank may be held liable in any case upon
a certificate of their cashier that a check is good when they have
no funds of the drawer, it is not because the cashier is deemed
authorized to make such a certificate, but because the bank is
bound by his representation, notwithstanding it is false and
unauthorized. [
Footnote 2/21]
Substantially the same concession is also made in the case of
North River Bank v. Aymar, [
Footnote 2/22] and in
F. & M. Bank v. B. &
D. Bank. [
Footnote 2/23]
Like concession is also made in the case of
Railroad Co. v.
Schuyler. [
Footnote 2/24]
Evidently the case of
Mechanics' Bank v. Railroad,
[
Footnote 2/25] makes the same
concession, even if it does not fully sustain the English doctrine
as exemplified in the leading case of
Grant v. Norway,
[
Footnote 2/26] which, in the
judgment of the circuit court, contains the true rule. [
Footnote 2/27]
Much vacillation is exhibited in the decisions of the New York
courts upon this subject, but they agree at present that the
certificate of the cashier or teller, as the case may be, if
regular, in form and unattended with any special circumstances,
amounts to a representation that the drawer of the check has funds
in the bank to meet the same, and that the
Page 77 U. S. 674
certificate unexplained binds the bank whether accurate or
erroneous, but that no such consequences will follow if there is
anything on the face of the instrument to show the contrary or if
the payee or holder knew that the authority of the cashier to make
the certificate depended upon the existence of funds in the bank to
meet the liability, and that the bank had none such at the time,
and that the payee or party presenting the check knew that fact.
[
Footnote 2/28]
Carefully examined it will be found that in everyone of the
cases decided by the courts of that state where the more stringent
rule is applied the check was presented at the bank in the
usual course of business, and that the act of the cashier
in making the certificate did in fact amount to an actual
representation that the bank held the funds of the drawer to meet
the demand.
Some of those decisions are doubtless inconsistent with the
decisions of this Court and with the English decisions and those of
the Supreme Court of Massachusetts upon the same subject, but there
is not one of them, if the facts of the case before the court are
properly examined and understood, which will sustain the claim of
the plaintiffs.
Beyond all question, the cashier of the plaintiff bank
represented his bank, he was an agent with full authority, and what
he knew in respect to the transaction in question must be regarded
as known to his bank. Viewed in the light of the circumstances it
is clear that he did not receive the certificates as a
representation that funds to that amount were in the State National
Bank to meet the checks. He knew that the fact was not so, as the
drawers were the customers of his own bank, and the case does not
show a single instance in which they ever had any dealings with the
defendant bank. Instead of that, he regarded the acts of the
certifying cashier as constituting the defendant bank a surety of
the drawers of the checks to his bank, and the conduct of the
president the next day in first arraigning the signer of the
certificates before he presented the checks to the president
Page 77 U. S. 89
of the defendant bank strongly confirms that view of the
evidence.
Agents, held out as such by their principals for certain defined
purposes, well known to the public, cannot bind their principals by
any acts done outside of the scope of their authority as defined by
the well known purposes of their agency. Masters of vessels are
authorized to sign bills of lading, and the instruments when duly
executed in
the usual course of business bind the owners
of the vessel if the goods were laden on board or were actually
delivered into the custody of the master, but it is well settled
law that the owners are not liable if the party to whom the bill of
lading was given had no goods, or the goods described in the bill
of lading were never put on board nor delivered into the custody of
the master. [
Footnote 2/29] Like
principles are applied in all cases where the authority of the
agent is limited and the limitations as defined by the purposes of
the agency are well known to the public. [
Footnote 2/30]
Persons dealing with an agent, knowing that he acts only by
virtue of a delegated power, must at their peril see in each case
that the paper on which they rely "comes within the power under
which the agent acts." [
Footnote
2/31]
Where the plaintiff in the suit is the payee of the instrument,
the correctness of that rule cannot be questioned, and this Court
decided in that case that the same rule applies to every
subsequent taker of the paper, adding, what is certainly
correct, where the suit, as in this case, is in the name of the
payee, "that the protection which commercial usage throws around
negotiable paper cannot be used to establish the authority by which
it was originally issued."
Cashiers are forbidden by the express decision of this Court
from making contracts on behalf of their banks not within the scope
of their usual and ordinary powers, involving
Page 77 U. S. 676
the payment of money, without an express delegation of authority
from the directors. [
Footnote
2/32]
Checks signed at the clearing-house and contracts for the
purchase and sale of New York funds are authorized by the
directors, and are sanctioned by usage, but cashiers have no such
authority to certify checks for third persons, which was well known
to the cashier of the plaintiff bank.
Associations organized under the act of Congress to carry on the
business of banking are required by the express words of the act to
transact
their usual business at an office or banking
house located in the place specified in their organization
certificate, and no individual officer ought to be allowed to leave
his bank and go elsewhere to make large contracts without the
instruction of the directors. Unless his power in that behalf is
limited to the established place of business, he may go wherever he
pleases for that purpose, and if he certifies checks anywhere
within the four seas of our continent, the banks is bound by his
contracts. Stockholders and depositors should take warning if such
is the law, as the national banks are liable at any moment to be
overwhelmed with pecuniary obligations and involved in utter
ruin.
[
Footnote 2/1]
13 Stat. at Large 101.
[
Footnote 2/2]
13 Stat. at Large 102.
[
Footnote 2/3]
Schuchardt v.
Allens, 1 Wall. 370;
Parks v.
Ross, 11 How. 362;
Bliven v.
N.E. Screw Company, 23 How. 433.
[
Footnote 2/4]
Ryder v. Woombwell, Law Rep. 4, Exchequer 39.
[
Footnote 2/5]
Law Rep., 2 Privy Council Appeals 335.
[
Footnote 2/6]
Jewell v. Parr, 13 C.B., p. 916;
Toomey v. L. &
B. Railway Company, 3
id. N.S. p. 150;
Wheelton
v. Hardisty, 8 Ellis & Blackburne 262, 266.
[
Footnote 2/7]
Schuchardt v.
Allens, 1 Wall. 369.
[
Footnote 2/8]
13 Stat. at Large 102;
Mussey v. Eagle Bank, 9 Metcalf
313.
[
Footnote 2/9]
9
ib. 313.
[
Footnote 2/10]
Oelricks v.
Ford, 23 How. 63;
Barnard v. Kellogg,
supra, <|77 U.S. 383|>383;
Insurance Company v.
Wright, 1 How. 457;
Simmons v. Law, 3 Keyes 219;
Beirne v. Dord, 1 Selden 97;
Bliven
v. Screw Company, 23 How. 431;
Dickinson v.
Gay, 7 Allen 37;
Dodd v. Farlow, 11
id. 428;
Spartali v. Benecke, 10 C.B. 222;
Trueman v.
Loder, 11 Adolphus & Ellis 598;
The Reeside, 2
Sumner 567.
[
Footnote 2/11]
The Floyd
Acceptances, 7 Wall. 666,
74 U. S.
678.
[
Footnote 2/12]
61 U. S. 20
How. 367.
[
Footnote 2/13]
Stagg v. Elliott, 12 C.B.N.S. 380.
[
Footnote 2/14]
16 Meeson & Welsby 355.
[
Footnote 2/15]
Supra, <|77 U.S. 192|>192.
[
Footnote 2/16]
Goodman v.
Simonds, 20 How. 365;
Andrews v.
Pond, 13 Pet. 65;
Fowler v.
Brantly, 14 Pet. 318;
Brown v. Davis, 3
Term 80.
[
Footnote 2/17]
Castle v.
Bullard, 23 How. 187.
[
Footnote 2/18]
Minor v. Mechanics'
Bank, 1 Pet. 70.
[
Footnote 2/19]
United States Bank v.
Dunn, 6 Pet. 59.
[
Footnote 2/20]
United States v. Bank of
Columbus, 21 How. 364.
[
Footnote 2/21]
F. & M. Bank v. B. & D. Bank, 16 N.Y. 131.
[
Footnote 2/22]
3 Hill 266.
[
Footnote 2/23]
14 N.Y. 631.
[
Footnote 2/24]
34 N.Y. 72.
[
Footnote 2/25]
3 Kernan 615.
[
Footnote 2/26]
10 C.B. 686.
[
Footnote 2/27]
Kirk v. Bell, 12 English Law & Equity 389;
Coleman v. Riches, 29
id. 329.
[
Footnote 2/28]
Clarke national Bank v. Bank of Albion, 52 Barbour 596;
Irving Bank v. Wetherald, 36 N.Y. 337;
Mead v.
Merchants' Bank, 25
id. 145.
[
Footnote 2/29]
The Schooner
Freeman, 18 How. 187.
[
Footnote 2/30]
Mussey v. Beecher, 3 Cushing 511;
Lowell Bank v.
Winchester, 8 Allen 109;
Benoit v. Conway, 10
id. 528;
Grant v. Norway, 10 C.B. 665;
Stagg
v. Elliott, 12
id. (N.S) 373;
Hubersty v.
Ward, 8 Exchequer 330;
Alexander v. Mackenzie, 6 C.B.
766.
[
Footnote 2/31]
The Floyd
Acceptances, 7 Wall. 676.
[
Footnote 2/32]
United States v. Bank of
Columbus, 21 How. 364.