Citizens' Bank of Paris v. Houston ( 1895 )

JUDGE LEWIS

DELIVERED TI-lE OPINION OF THE COURT.

Joseph Houston, about September 22, 1891, delivered to, and Citizens Bank of Paris, Kentucky, received, for collection an order or check for $129, which one G-rifSth had drawn on the Cynthiana National Bank at Cynthiana, payable September 30,1891, to his order. In proper time it was sent to the latter bank, but returned, duly protested for nonpayment, of which fact written notice was immediately mailed to both appellee and Griffith.

October 6, 1891, Griffith drew an order on the Bourbon Bank of Paris, for $131.66, being the amount of the original one and protest fees added, and payable to order of Brent, cashier of Citizens Bank of Paris, which, upon representation that he had there deposited money to meet it, was accepted by the bank instead of tbe original, then canceled and given up. But payment of that check was likewise refused, although presented for that purpose to the Bourbon Bank of Paris, on the day it was given and other days.

October 22, 1891, Griffith made a deed of assignment for the benefit of creditors generally, and March, 1893, Houston brought this action to recover of Citizens Bank of Paris amount of original check and interest, for which, under peremptory instruction of the court, the jury returned a verdict, followed by judgment now appealed from.

The alleged cause of action is that defendant, without consent or knowledge of plaintiff, canceled and gave up that check and accepted in lieu of it a check from Griffith, the debtor, on another bank, made payable to the order of its own cashier.

Up to that time defendant had performed its undertaking with due diligence and in good faith, and the original check was plainly worthless, for Griffith was, as seems to be conceded, insolvent. But, whether strictly required to- do or attempt to do more in an effort to collect the debt, it is plain, defendant accepted the new and gave up the old check in good faith, and as the only then practicable or possible way of subserving the interest of plaintiff. And that it intended and could possibly profit by assuming ownership of the debt and becoming liable to Houston therefor is wholly unreasonable. We know of no rule of right that would, under such circumstances, make an agent liable to his principal, for such was the relation of the parties throughout the transaction.

It may be that when an agent acts without or beyond the line of his authority, and the principal incurs thereby an injury, he may be held liable; but here no injury was done to plaintiff by cancellation of one and acceptance in its place of another check, nor, according to the evidence, was the transaction either without implied authority of plaintiff or such as he would or could have reasonably objected to if present.

The testimony of Griffith, introduced by plaintiff, shows that after the check on National Bank of Cynthiana had been protested for non-payment, he, by letter, informed and promised plaintiff he would go to Paris and “fix it up,” and that plaintiff, after being notified of the protest and return of the check to the Citizens Bank of Paris, remained away four or five days, making no effort to collect it himself, is convincing that he expected and intended defendant, as his agent, to attend to the matter of having Griffith fix it up.

The fact of the new check being made payable to the cashier of defendant is no evidence of its intention to assume ownership of the check or become liable to plaintiff therefor, because, he being absent, it had to be drawn in that way in order to procure proper presentation and payment.

It seems to us, as this record stands, defendant incurred no liability to plaintiff, and the jury ought to have been so instructed.

Wherefore, the judgment is reversed and cause remanded for a new trial consistent with this opinion.