Corser v. Paul , 41 N.H. 24 ( 1860 )

Bell, C. J.

The note was indorsed by “ C. Hale, cashier.” His authority was denied, and though proof of authority was not offered, beyond the fact that he was cashier, the evidence was admitted.

Story, in his work on Agency, 108, see. 114, says: “ The officers of a bank are held out to the public as having authority to act according to the general usage, practice and course of business of said institutions. The cashier of a bank is usually intrusted with all- the funds of the bank in cash, notes, bills, and other choses in action, to be used from time to time, for the ordinary and extraordinary exigencies of the bank. He is accustomed to receive directly, or through the subordinate officers, all moneys and notes of the bank; to deliver up all discounted notes, and other securities and property, when payment for the dues for which they have been given has been made, and to draw checks for money, wherever the bank has deposits or pecuniary funds. In short, he is considered the executive officer, through whom and by whom the whole moneyed transactions of the bank, in paying or receiving debts, and discharging or transfering securities, are to be conducted. It does not seem, therefore, too much to infer, in the absence of all positive and known restrictions, that he possesses the incidental authority, and indeed that it is his duty, to apply the negotiable funds, as well as the moneyed capital of the bank, to discharge its debts and obligations. Hence it seems to be a natural conclusion, that prima fade the cashier of a bank possesses the incidental authority to indorse the negotiable seeurities held by tbe bank, to supply the wants and to promote the interests of the bank; and any restrictions on' suck authority must be established by competent proofs, and will not be presumed to exist.” Wild v. Bank, 3 Mason 505.

The same doctrine abridged in form, is stated in 1 Bouv. Law Dict., Art. “Cashier;” in Dunlap’s Paley’s Agency 156, n. 1, and Ang. & Am. on Corp. 296, recognized in Lloyd v. W. B. Bank, 3 Har. 172; Fay v. Noble, 2 Cush. 1; Kimball v. Cleaveland, 4 Mich. 606.

In Elliot v. Abbott, 12 N. H. 549, the case in 8 Mason 504, is cited, and the cases distinguished. It was there held that the cashier of a bank, for the purpose of collection, may indorse notes belonging to the bank, and those lodged there for collection, or as collateral security; and we think that the rule is there well stated. So far as we are aware, these are the only occasions on which, by the general usage, practice and course of business of those institutions, their cashiers are accustomed to indorse negotiable paper; and it does not occur to us that there is occasion for those officers to transfer the securities held by the bank on any other occasion. By special authority, a cashier may indorse on other occasions, but without such express authority he cannot indorse a note made payable to a bank, and discounted not by the bank, but by another person, as was held in Elliot v. Abbott, before cited. By an express vote of the directors, his indorsement of such a note would be valid. Cross v. Young, 22 N. H. 77.

The case finds that this indorsement was made for the purpose of collection; and the fact that the suit is brought and prosecuted by the bank in the name of the plaintiff, is a sufficient ratification of the indorsement, if any were needed.

Charles T. Paul, another supposed signer of this note, was permitted to testify that he did not sign or authorize it to be signed with his name. We think the evidence was admissible upon the principle held in Knight v. Heath, 23 N. H. 410, that every paper offered in evidence, is, like a witness, liable to be scrutinized as to every circumstance connected with it, to see if it is entitled to the credit it claims.

The occurrences which took place at the bank were properly submitted to the jury as matter of evidence. No principle is better settled than that a man’s silence upon an occasion where he is at liberty to speak, and the circumstances naturally call upon him to do so, may be properly considered by the jury, as tacit admissions of the statements made in his presence, or of the claims then made upon him. The rule and its qualifications are well stated in 2 Gr. Ev. 230, 232, secs. 197, 198. Admissions may be implied from the acquiescence of the party; but where it is acquiescence in the conduct or language of others, it must appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from his passiveness, or silence. The circumstances must not only be such as afforded an • opportunity to act, or speak, but properly and naturally called for some action, or reply, from men similarly situated. This kind of evidence should always be received with caution, and never, unless the evidence is of direct declarations of that kind which naturally called for contradiction, or some assertion made to the party or others with respect to his right, which by his silence he acquiesces in. But the silence of the party, even where the declarations are addressed to himself, is worth very little, as evidence, unless where he had the means of knowing the truth or falsehood of the statement. See Phelps v. Gilchrist, 28 N. H. 278; Molineaux v. Eastman, 14 N. H. 507 ; 1 C. & H. Phill. Ev. 358 ; Cane v. Call, 21 Pick. 522 ; Hessey v. Barton, 23 Vt. 685; Brainard v. Buck, 25 Vt. 579; B. & W. R. R. v. Dana, 1 Gray 104.

The facts in evidence here bring the case fairly within the rule. The note and claim of the bank against him was brought to his notice by the letter of the cashier. He called at the bank and asked to see it, and was told, if not paid immediately, he would be compelled to pay it. He must have understood the matter fully, and he had opportunity to deny his signature, if it was not true. It was an occasion which called upon him to deny his liability, and to denounce it as a forgery, if he did not sign it; but he did not intimate that the note was not signed by him, or that there was any thing wrong about it. These facts were evidence of a tacit admission that the note was, as the bank claimed it to be, a genuine note, signed by him,.and which he was consequently liable and bound to pay, or a note which he did not choose to deny that he had signed, and which he preferred to pay rather than do so. Humphreys v. Guillow, 13 N. H. 385. The evidence was, therefore, properly received. The charge of the court, therefore, upon this point was correct. If the defendant intended to assent to the note, to waive any objections to it, not to avail himself of the want of genuineness, that would ratify and confirm the note ; and though he changed his mind afterward, he would be bound; but if he had no such intention, the evidence would be immaterial.

If any objection would lie against this part of the charge, it would be that it had too exclusive reference to the defendant’s intention to ratify and affirm the note where the jury might have regarded a mere intention on his part not to object to the note — not to denounce it as a - forgery — but rather to pay it than east a stigma upon his brother, or an intention to say nothing against the note, until he had ascertained whether his brother could not pay it, as quite a sufficient affirmance of the note, though he had no intention to affirm it; but the defendant cannot take this objection, because its only fault is that it is too favorable to him.

It seems to have been contended by the counsel for the plaintiff, that if the defendant, when he called at the bank, and examined the note, and was requested to pay it, did not disavow it, he would be afterwards precluded by law from denying it; and on the other hand, the defendant’s counsel contended that no legal consequences or influence arose from the defendant’s omission -to denounce the note, unless the jury found that by such omission the bank had been prejudiced.

Neither of these points are well taken. There is a class of admissions which may be either express or implied from silence, or acquiescence, which are conclusive. Such are admissions which have been acted upon, or those which have been made to influence the conduct of others, or to derive some advantage to the party, and which, therefore, cannot be denied without a breach of good faifh. 1 Gr. Ev. 83, sec. 27. As if, for example, in the present case, the defendant had stood by and seen this note offered to the bank for discount; and, being aware of what was doing, had been silent; or if, before the discount he had been spoken to by any of the officers of the bank in relation to the note, and, being aware of the facts, had foreborne to deny the signature — by these tacit admissions he would be forever concluded to deny the note to be his, in ease the bank discounted it. This is but an application of the same principle that is applied in the • ease of deeds of real estate, that he who stands by, at the sale of his property by another person, without objecting, will be precluded from contesting the purchaser’s title; Wells v. Pierce, 27 N. H. 503 ; much more if he actively encourages the purchase. Parker v. Brown, 15 N. H. 184.

TJpon the same principle, if the defendant here, knowing the true condition of the case, had, by his silence, prevented the bank from taking measures which they were proposing to adopt at once to secure themselves on the property of John H., from a doubt of the genuineness of tbe defendant’s signature, he would be bound by bis silence, and would be estopped to deny his signature. But, in such a case, it would be a complete answer to a claim that a party was thus concluded, to show that the adverse party had not acted upon such an admission, and were not thus prejudiced by such silence; as, for instance, if it could be shown that they were perfectly aware of the truth, and were not misled.

But neither of these principles were-applicable in this 'case. There is no preteuee of evidence that the bank were in any respect induced to change their position by any thing that occurred when the defendant called at the bank; nor is there room for a suggestion that the bank were aware of the actual condition of the note, until afterward.

The evidencias to what was said by Henry Paul, at J. H. Paul’s house, after seeing the note, was clearly inadmissible. He could not make evidence for himself* by his own mere declarations.

The statements of J. H. Paul were mere hearsay. They accompanied and gave character to no other transaction material to the cause, and of which evidence would be admissible before the jury. Carlton v. Patterson, 29 N. H. 580.

Judgment on the verdict