Mann v. Second National Bank , 30 Kan. 412 ( 1883 )

The opinion of the court was delivered by

Brewer, J.:

This was an action on a negotiable promissory note. Trial by jury. The court instructed the jury peremptorily to find for the plaintiff, and of this defendants complain. The note was given in payment of a Champion harvester and cord binder. In the sale of this machine a warranty was given, and the defense was a breach of the warranty, and therefore a failure of the consideration. Upon the trial, testimony was offered in support of this defense, and finally it was admitted that the defendants were entitled to a verdict, unless the plaintiff was a purchaser of the note for a good and valuable'consideration before maturity, without notice of the failure of the warranty. The note was in form to the order of Amos Whitely, president. It was due January 1, 1882, and was indorsed and transferred to plaintiff, December 14, 1881. The note, though in form to the order of Amos Whitely, was the property of the Champion machine company, was taken by it on the sale of the machine, in the name of its president, for convenience, and by it, through the indorsement of its president, transferred to the plaintiff. The failure of the warranty was communicated to the general agent of the company at St. Joseph, Missouri, before the note became due, and while it was in the possession of the company. It further appears, that the only officer of the bank who took part in the discount and purchase of this note by the plaintiff, was its cashier, John G. Benalack, who had been cashier since August 15, 1881. Up to a month prior to such time, he had been book-keeper of the Champion company, and knew in a general way that the consideration of notes received by the company was its machines. He had no personal knowledge of the consideration of this note, or the failure of the warranty in the sale; of the machine, or of any other matters connected with it. The note was brought to him by the cashier of the Champion company for discount, in the ordinary course of business. After having been discounted, it was held by the bank until sent forward for collection. Suit was commenced March 11, 1882. Amos Whitely, the president of the machine company, who indorsed this note, was a director of the plaintiff bank, and one of the three members constituting its discount committee at the time this note was discounted. The note was never formally presented to the discount committee, but it was discounted by the cashier, under general instructions from the officers to discount any paper offered by certain customers of the bank, included among whom was the Champion machine company. These instructions were given by the president, and perhaps, according to the testimony of the cashier, by Amos Whitely, also. Prior to the first of January, ‘1882, Amos Whitely was in the habit of visiting the bank once or twice a week, and was as familiar with its business as directors usually are. His connection with the Champion machine company was not only as president, but also as its actual business manager.

Further, at the time of discount no money was paid directly to the machine company, but the amount of the discount, $142.14, was credited to the account of the machine company. At that time, and since, up to the time of the commencement of this action, the machine company carried an average balance of several thousand dollars in the bank.

This, we believe, covers all the material testimony. All bearing upon the indorsement and transfer of the note to plaintiff, and the relations of the Champion machine company to the plaintiff, was in the deposition given by the cashier of the plaintiff. Upon this testimony two important questions arise: First, did the bank take with notice of the defense to the note? second, had it so paid for the note that it could claim the benefits of a bona fide purchase for value?

Upon the first question, we remark that the knowledge of the general agent of the Champion machine company was the knowledge of the company. Therefore, at the time it indorsed the note to plaintiff it knew of its infirmity; hence, if the bank was chargeable with notice of what the company knew, then it- was not a bona fide holder without notice. Now the president and general business manager of the machine company was, as stated, a director and one of the three members of the discount committee of the bank. He knew what the company knew of the infirmity of the paper. As president and general business manager he knew, because the company knew, that the warranty in the sale of the machine had failed, and that therefore the makers had full defense against this note. Is the bank chargeable with the notice of what Amos Whitely, a director and member of its discount committee, knew? The mere fact that Whitely was a director would not, it seems, charge the bank with notice of what he knew. In Wade on the Law of Notice, §§ 682 and 683, the author thus states the rule:

“Accordingly, in a case where one of the directors of a bank had notice of the fraudulent perversion from the objects for which they were drawn, of certain bills, and with that knowledge was present at a meeting of the board where the same bills were presented for discount, his knowledge was properly held to be the knowledge of the bank. However, the mere fact that a bank director is in possession of certain knowledge which would prevent his becoming an innocent holder would not affect the bank if the paper should be received there and discounted without his knowledge. It could hardly be his duty to report to his bank every fact coming to his notice in relation to all the negotiable paper of which he may have any knowledge, where he had received no intimation that such paper would be presented there for discount.”

The authorities cited in the notes seem to sustain the general doctrine laid down in this quotation. (Bank v. Senecal, 13 La. 525; Insurance Co. v. Insurance Co., 10 Md. 517; Bank v. Paine, 25 Conn. 444; Bank v. Hart, 3 Hay, 491; Bank v. Lewis, 22 Pick. 24; Bank v. Norton, 1 Hill, 572; Bank v. Davis, 2 id. 463; Bank v. Aymar, 3 id. 263.) So that the mere fact that Whitely as a director of the bank knew of the infirmity in the paper, would not charge the bank with notice unless he in some way participated in the discount. But there is a fact beyond that of directorship: Whitely was one of the three gentlemen constituting the discount committee of the bank. While as a director he had a general supervision over the affairs of the bank, as a member of the discount committee he was charged with a special duty covering its discounts. And the question as it really stands is narrowed to this: Can an officer of a bank, charged with a special duty, by a general instruction to another officer to perform that duty, in a certain class of cases, relieve the bank from responsibility for notice of facts which it would unquestionably have known and been responsible for if he had discharged such official duty ? In Morse on Banks and Banking, page 113, the author says: any other member of the board. Wherefore, notice to him on any subject would probably be held to be notice to the bank. If it fall within the scope of the agency and official employment of the officer, it is notice to the bank.” (See also Bank v. Davis, 2 Hill, 463.)

“In the case of knowledge required by or communicated to any other officer than a director, little difficulty can arise. The president, it should be remembered, is a director; but his duty of general supervision is more general than that of

We think it is a question of grave doubt whether public policy will permit an officer of a bank, charged with a special duty, to surrender the actual performance of that duty to any other officer, and thereby relieve the bank from the responsibility which would rest upon it had he properly discharged his duty. We shall not, however, absolutely pass upon that question, for we think upon the other question presented the ruling of the district court was erroneous, and must be reversed.

In reference to that question, it will be observed that the bank in fact paid nothing to the company at the time of the discount. It simply credited the company on its books with the amount of the discount, and thereby enlarged the company’s account with the bank. It is not a case in which the company’s account was overdrawn, and in which it was indebted to the bank, which indebtedness was reduced by the amount of the discount. On the contrary, the bank owed the company, and it simply, by the discount, increased the amount of this indebtedness, an indebtedness which continued until after suit was brought, and the bank had full notice of the defense. Now conceding that the bank was a bona fide holder, that it acquired title, in the first instance, without any notice of any infirmity, to what extent is it protected? The general rule in such cases is, that a bona fide holder is protected to the amount he has paid, or lost, by virtue of the discount.In the case of Dresser v. The Construction Co., 93 U. S. 92, it was held that a bona fide holder of negotiable paper purchased before its maturity, upon an unexecuted contract, on which part payment only had been made when he received notice of fraud and a prohibition to pay, is protected only to the amount paid before the receipt of such notice. In the opinion, which covers simply that point, the authorities are fully cited, and the conclusion reached is the' unanimous . opinion of the court. In Bank v. Valentine, 18 Hun, 417, it is held that the mere discounting of a note, and giving a party credit on the books of the bank for the amount thereof, does not constitute the bank a holder for value. A similar proposition is laid down in Dougherty Bros. & Co. v. The Bank, 93 Pa. St. 227.

We do not cite the various cases in support of the general proposition,, for they are fully cited and discussed in the opinion of the court in 93 U. S., supra. The proposition rests on the plainest principles of justice, and in no manner impairs the desired negotiability and security of commercial paper. Whenever the holder is a bona fide holder, he has a right to claim protection, but protection only to the extent he has lost or been injured by the acquisition of the paper. If he has parted with value, either by a cash payment or the cancellation of a debt, or giving time on a debt, or in any other manner, to that extent he has a right to claim protection; but when he has parted with nothing, there is nothing to protect. A mere promise to pay is no payment. He may rightfully say to the party from whom he purchased: “The paper you have given me is valueless, and therefore I am under no obligations to pay;” and if the paper be in fact valueless, payment cannot be compelled. Now the relation of a bank to its depositor is simply that of debtor. The bank owes the depositor so. much. If the deposit is valueless its obligation to pay is without consideration, and it may decline to pay. There is nothing in the relation of a bank to its depositor which takes its obligation to its depositor out of the general rule of debtor to creditor. The case of Bank v. Crawford, 2 Cin. Superior Court, cited by defendant in error, is a case in which the depositor’s account was overdrawn, and the discount therefore was practically the payment of an antecedent debt. In such a case the bank, having taken the paper in payment of an antecedent debt, was entitled to protection to the amount of such debt. (Draper v. Cowles, 27 Kas. 484.)

We therefore think that the bank, having paid nothing at the time of its discount, having simply increased its debt to the depositor, the machine company, and that debt remaining unpaid at the time suit was brought, and it having received actual notice of the infirmity of this paper, cannot claim the protection of a bona fide holder for value.

We see nothing in the case of the Railroad Go. v. The Bank, 102 U. S. 14, which conflicts with this conclusion. At least, there is nothing in the decision as applicable to the facts of that case which conflicts, nor in the illustrations made by the learned judge who wrote the opinion of the court. And while there are some expressions in that opinion which may seem to conflict, we do not understand that the court means in any way to overrule the prior case in 93 U. S., supra. We think, therefore, the district court erred in its peremptory instructions to find for the plaintiff; that the judgment must be reversed, and the case remanded for a new trial. (See also Jordan v. Bank, 74 N. Y. 467; Bank v. Bank, 1 Hall, 619; Bank v. Bank, 46 N. Y. 82; Hubbard v. Chapin, 2 Allen, 328; Stevens v. Bank, 3 Hun, 147; Holcomb v.Wyckoff, 35 N. J. L. 36; Holmon v. Hobson, 8 Humph. 127; Bank v. Chapin, 8 Metc. 40; Williams v. Smith, 2 Hill, 301; Todd v. Shelbourne, 8 Hun, 510; Butler v. Harrison, 2 Cowp. 565; Garland v. Bank, 9 Mass. 407; Clark Nat. Bank v. Bank, 52 Barb. 592; Platt v. Chapin, 49 How. [N. Y.] 318.)

The judgment will therefore be reversed, and the case remanded for a new trial.

All the Justices concurring.