FEDERAL ,REPORTER.
uty who' made the arrest, in order to show that it was not by the instru<ltion of the plaintiff or his attorney that he went with the writ at that time to that place to arrest the defendant." The evidence is uncontradicted that the deputy marshal did go, at the time and place designated by the agent of the plaintiff, to make the service of the summons, and there is no disavowal on his pal·t that he procured the presence of the defendant then and there. The writ must be set aside.
EXOHANGE NAT. BANK OF PITTSBURGH V. THIRD NAT. BANI:
OF
NEW
YORK.
(Oircuit Oourt, D.New JlJi'SCy.
October 2; 1880.l
·
tion of a: bill of exchange' isllable, if he fails to notify his principal· when such has been duly presented andacc.eptanc!J according to its tenor refused. bills of e;l:change to "Walt,er secretary Newark Tea-Tray Company, ,Newark,N. J," were forwarded to the defendant bank for collection; Without special instructions from its principal, or any information which might ()Iiallfyor explain the, import of the bills upon their face. The bills were duly presented to WaIter M., Conger, and were accepted in writing across their face, as follows: "Accepted. Payable at the Newark National Banking Company. Walter}1. Conger." Held, in view of the facts, and in view of the decisions of the courts of the siate in which the drawee of the bills resided, and where they were to be accepted and paid, and of concurrent elsewhere, that the defendant did notcommit any breach of duty in taking the aC{;eptullce in this form.
2.
M.
EX. NAT. Ell:. OF PITTJlBURGH 1:. 'l'HIRD NAT. BK. OF N. Y.
21
beprotcst'Cd for non-acceptance, and due notice to bEl given to the pll}intiif. A jury was dispensed with, and the case heard by the court upon the evidence submitted. The following facts are found as the result of this evi· dence: , First. That the plaintiff is the holder of 11 drafts for va· rious sums, amounting altogether to $12,292.58, which were drawn by Rogers & Burchfield, at Pittsburgh, to the order of J. D. Baldwin, and by him indorsed on Walter M. Conger, seeretary Newark Tea-Tray Company, Newark, N. J. Second. These drafts bear different dates, from June 8, 1875, to September 20, 1875, and are in all respects similar, except as to the sums payable, and are in the following form: PITTSBURGH, June 8, 1870 Four months after date pay to the order. of J. D. Baldwin ten hundred litnd forty-two and 75-100 dollars, for .account rendered,. value received, and charge to account of , ROGERS & BURCHFIELD. : , . . . . To Walter M. Conger, secretary Newark Tea-Tray Co., New, ark, N. J.. \
Third. l'hey were' transmitted for collection at different times before maturity by the plaintiff to the defendant, in letters describing them by their numbers and amount!l, and by the words "Newark Tea-Tray Co.," and were sent by the defendant to its correspondent, the First National Bank ofN-ewark, enclosed in letters describing them generally'in the same way. Fourth. By the First National Bank of Newark they were presented for acceptance, and, with one exception, wereaccepted, by writing on the face of them as follows: "Accepted. Payable at the Newark National Banking Co. Walter M. Conger." Fifth. The First National Bank of Newark held them for payment, but the plaintiff was not informed of the form of the acceptances until the thirteenth and nineteenth of October, 1875. Two of the drafts were returned to it by the defendant when both the drawers and indorsers were insolvent.
4
29
FEDERAL REPORTER.
Sixth. At the time when the drafts were disconnted by theplaintiff the drawers were in good credit; but none of them have been paid, and they were duly protested for non-payment. Seventh. The Newark Tea-Tray Company is a corporation created by the laws of New Jersey, and doing business in that state, and Walter M. Conger was its secretary. The question, npon these facts, is, was the defendant guilty of negligence in the discharge of its duty as the plaintiff's agent, whereby the plaintiff was subjected to loss? What, then, was the duty of the defendant? The drafts were payable at a certain future day, and were sent to the defendant for collection. As was said by Selden, J., in Walker v. The Bank of the State of New York, 9 N. Y. Hep. 582-584, "that any agent, whether it be It bank or an individual, receiving a note 01' bill from the holder for collection, is responsible for any loss which the holder may sustain on account of any neglect in preseding it or in giving notice of its dishonor; that it is the duty of an agent who receives for oollection a bill of exchange, payable at some future time, to use due dilthe same for acceptance, and if he fail igence in to do so, or fail to give notice in case acceptance is refused, he will be liable;" Failure to present a bill for acceptance before maturity by an agent to whom it is entrusted for colspecial instructions, will not constitute want lection, of due diligence, because acceptance before the day fixed for payment is not necessary to hold the drawer and indorser, as was held in Bank of Washington v. Triplett, 1 Pet. 25; but if it is presented, and acceptance according to its tenor is refused, if the agent fail to give notice he will be liable. The drafts here were addressed to "Walter M. Conger, secretary Newark Tea-Tray Company, Newark, N. J.," were duly pres.ented to him, and were accepted in writing across their face, as follows: "Accepted. Payable at the Newark National Banking Company. Walter M. Conger." It is contended by the plaintiff that the drafts were addressed to the Newark Tea-Tray Company, and that the acceptances 'were not by that company, but by.Walter M. Conger, individually, and that, by taking them in this form,
EX. NAT. BK. OF PITTSBURGH V. THIRD NAT. BK. OF N.
1(.
23
the defendant caused the loss to the plaintiff of the drawors -of the bills; and upon this hypothesis the right of the tiff to recover entirely depends. It is urged with equal earnestness, on the other side, that in legal effect the drafts were drawn on Walter M. Conger, with the suffix of secretary as matter of personal identification, and that the acceptwere by the proper person, in his proper character. 'fhe most that can be imputed to the defendant is that it -erred in judgment as to the import of the address upon the bills, and therefore did not cause them to be protested for non-acceptance, and notice to be given to the parties. Is this unfaithfulness or negligence in a sense which will subject the defendant to liability for the loss complained of? Whether the defendant was bound to present the drafts for acceptance before their maturity or not, it certainly evinced a disposition to fulfil its agency with diligent faithfulness, by promptly presenting them for acceptance to the person named as drawee. And this it did without special instructions from its principal, and without any information which might qualify or explain the import of the drafts upon their face, or repel the pr.esumption arising from the restricted functions of .the secretary of a corporation, that he was not its financial repre. sentative. Thus left to the exercise of its Own judgment, when it regarded Mr. Conger as in his individual character it did not fall a CUlpable or irrational error, because it followed the evidence of the decisions of courts of the highest standing upon the subject. In v. Davis, 1 Zab. 683, a case decided by the supreme court of the state, in which the acceptances here were made and were payable, and therefore of special if not of decisive significance, it was held that a -bill signed "John KBan, president Elizabethtown & Somerville Railroad Company," was to betaken as prima facie the individual bill of John Kean; but, inasmuch as the railroad company was named _ in the body of the bill as payee, such an ambiguity existed .as to render parol evidence admissible to explain it, and show the bill was drawn in behalf of the company. In ]1088 V. Livingston, 4 N. Y. 208, a bill was drawn on "'John R. Livingston, Jr., president Mining
24
pany, New York," and was accepted by "John R. LiYingston, Jr., president Rosendale Mining Company, 16 Wall street," and the court held that the company was not bound by it, saying: "The bill cannot .be deemed the obligation of the company. It does not purport to have been drawn in their behalf, nor was addressed to them, or accepted in their corporate name. .They were not, therefore, bound by it. In order, to give it any legal effect, we must hold it to be the private act of the parties whose names are written upon it, and binding upon them as an ordinary bill of exchange." There are many other cases of similar tenor which hold that affixing an official or representative designation to the name of a promissor will not change the personal import and character of an obligation which does not indicate a different liability on its face. These cases are collected in 1 Daniell on Neg. Inst. § 455d, and in the note to Burlingame v. Brewster, 22 Amer. Rep. 177, to which no more than this general reference is needed. Now, that there are cases in conflict with these referred to is undeniable; but, whether the preponderance of authority is in favor of the plaintiff's 01' the defendant's contention, is in. decisive of this case. Intelligent and cautious judgment, upon the information with which it was supplied, and reasonable diligence, are the conditions which the defendant en· gaged to fulfil. If, then, in accordance with the decisions of the courts of the state in which the drawee of the drafts resided, and where tht::y were to be accepted and paid, and of concurrent decisions elsewhere, it treated them as drawn on Walter M. Conger, and took his acceptances accordingly, it did not commit any breach of duty, and the plaintiff cannot recover. Moreover, the plaintiff alone knew who was the intended drawee, as understood between it and the drawers. Of this its agent ought to have been advised, that it might have a certain guide in the performance of its duty. But the plaintiff omitted to furnish this information, and now seeks COlUpensation for an alleged injury, which the exercise of thoughtfnl diligence on its part would have averted. If there was
BANK OF SHERMAN V. APPERSON.
25 ,
any error of juclgment by the delendant, the plaintiff is by no means blameless. There must, therefore, be a judgment for the defendant, upon the facts found by the COUl't, which the clerk is hereby directed to tmtcr.
BANK OF SHERMAN
v. E. M.
ApPERSON
& Co.
(Circuit Court, W. D. TennC88eB. October 13, 1880.) L NEGOTIABLE NOTES-RECITING CONBIDERATION-PAYABI,E TO All
A.D-
lDNIBTRATOR.-Neither the fact ihata note is payable to an administt--ator, nor that it recites that it was for value received, "being for a J>f'rt of the third payment on the Goree plantation, as per agreement of the fourteenth February, ]874," destroys its negotiability, or SUbjects it to the conditions of that agreement. 2. NEGOTIABLE NOTEB--'OmSBION OF THE WORDS" OR ORDER." - It is well-settled that aJl.ote omitting the words" or order," is not negotiable unless it contains other words of like import; but this has been changed in Tennesse by statute, and neither those nor any equivalent words are necessary. 8. COMMERCIAL LAW-STATE STATUTES-WHEN BINDING.-While no decision or statute of a state restricting or impairing the rights and remedies secured to the citizens of the several states under the general commercial law, or divesting the federal courts of their cognizance of those rights and remedies, is binding on those courts, statutes which enl,argc the commercial law will be enforced. They are not confined to the commercial law as it exists outside such statutes. 4. NEGOTIABLE NOTES-BONA FIDE HOLDER FOR VALUE.-Nothing less than actual know!edge of the faPots relied on to estaLlish the defence I)f 8 failure of consideration, or bad faith, can defeat the right of 8 bona fide holder for value to recover on a negotiable note. Mere knOWledge of suspicious circumstances, which, if followed up by inquiry, would develop the facts, is not sufficient in the federal courts, although the rule is otherwise in Tennessee. The facts in tllis case would not, it seems, defeat the recovery in the Tennessee state courts; certainly not in this court.
T. B. 1l1kon, for plaintiff. for defendants. HAMMOND, D. J. On motion for a new trial. Upon full eonsicleration of the arguments made upon this motion, I am 1;atisfied with the rulings I made upon the demurrer and at Myers Ii