Dimes Savings Institution v. Allentown Bank , 1870 Pa. LEXIS 207 ( 1870 )

The opinion of the court was delivered, May 5th 1870, by

Agnew, J.

We have in this case twenty-six errors assigned to a single charge of ordinary length, which is as much as to say the judge did not open his' mouth unless to commit an error. This skill at multiplication is accomplished by dividing the charge into short paragraphs and assigning error to each. The injustice of thus manipulating a charge by piecemeal is obvious; while a still more serious injury is done to the cause by indiscriminate allegations of error and useless discussion. They distract our minds by diverting them to consider matters of no moment, and weaken the strong points, if any, by heaping upon them those that are feeble. Upon a writ of error it is much better to consider well the positions which seem to be fairly tenable, and to present them alone. Then the argument spends its concentrated force upon that which commands consideration, and the attention of the judges is not diverted to that which is immaterial. In this way real error is apt to be detected; while in the other, the mind, wearied by unimportant exceptions and inconclusive discussion, is more likely to overlook material errors. We commend these remarks to those who practice before us.

In the present case, after a careful examination of the charge of the learned judge below, as a whole, we can say confidently there were a very few questions in the case, and they were presented fairly. In saying this we dispose of nearly all of the assignments of error. There was one primary and leading question of fact which, found by the jury, solved the case. Were Cronise & Co. the agents of the plaintiffs or of the defendants in converting the coin sent to them and depositing the proceeds in bank? This question was fairly submitted to the jury. We do not discover that one-sidedness in presenting the facts, of which the plaintiffs in error complain. According to the charge returned to us, the judge read the whole of Mr. Bush’s testimony to the jury. As to the material points of difference between him and Mr. Cooper, his testimony was negative in its true character, while that of Mr. Cooper was positive. This was a transaction of nearly nine years standing, and therefore depended on distinctness of memory. What Mr. Cooper stated he remembers positively and clearly; while all that can be said of Mr. Bush’s statement is, that he does not remember the facts stated by Cooper, and yet it is possible they existed. The recollection of Coo'per is sustained by the inherent probability of the thing itself. Bush had been-making inquiries for a suitable broker to send coin to for' conversion, and made inquiry of Cooper also. He took the coin, tied and sealed up in a bag, after business hours, labelled with the name and place of business of Cronise & Co., handed it over to the teller at the Allentown Bank, asking no credit, memorandum or receipt, and merely saying that Mr. Cooper knew what to do with it. The money was neither counted nor credited by the Allentown Bank, and not charged by Bush. The Allentown Bank needed funds to meet their circulation in the city of Philadelphia, and the Dimes Bank had overdrawn its account, while Mr. Bush himself admits that he expected (if he did not express it) the proceeds of the coin would be carried to the credit of the Dimes Bank in its account with the Allentown Bank. What difficulty was there, therefore, in believing the positive recollection of Mr. Cooper that he suggested to Bush that he might take advantage of Cooper’s arrangement with the express company to send the coin to Cronise & Co., and that the proceeds might be deposited to the credit of the Allentown Bank in Philadelphia, and the Dimes Bank get credit in the Allentown Bank, and that Bush consented to this suggestion ? With all these strong corroborating facts, we are unable to discover any unfairness on the part of the judge in presenting the testimony to the jury.

The fact being established that Cronise & Co. were the agents of the plaintiffs to convert the coin and make the deposit to the credit of the Allentown Bank in the Manufacturers’ and Mechanics’ Bank, the other questions are solved by it. The credit given by the Allentown Bank, on the 13th of December 1860, for the proceeds of the coin ($493.22) was founded on the letter of the defendants’ own agent. The defendants themselves were misled by the same letter. The credit and charge were therefore entered by each respectively, through a common mistake, whether that arose from a misconstruction of the terms of the letter, or a false statement by Cronise & Co. Whether Cronise & Co. meant by that letter that they had deposited'the proceeds in the Manufacturers’ and Mechanics’ Bank, or that. they would do so, is immaterial — it is clear they never did so, and this was bad faith and fraudulent conduct on their part. The judge was therefore justified in characterizing it as bad’faith and fraud. It was their duty to deposit the proceeds of the coin on the next day, but they did not. When they professed to make the deposit, it was by their own check, when they knew they were insolvent, and not in money, as good faith required. They failed on the same day they drew the check, and whether they had funds in the Farmers’ and Mechanics’ Bank is not material, as they had violated their trust before and up to the day they failed. Their check was not money, and being the agents of the defendants who had sent them money in fact, they had no right to substitute their own check in place of the money. The Manufacturers’ and Mechanics’ Bank had no authority from the plaintiffs to receive the check; and no authority being given to deposit it, either by the plaintiffs or the defendants, the check was neither a payment nor a deposit, as against the plaintiffs. Cronise & Co. thus being the agents of the defendants, it is plain that nothing less than an actual and boná fide deposit of the money to the credit of the plaintiffs can charge them with the receipt of the proceeds of the coin. The reason is obvious — until such a deposit was made, the plaintiffs had no part in the transaction, and could be in noyise implicated in the affairs of Cronise & Co. with the Manufacturers’ and Mechanics’ Bank. If such a deposit were not made, it was the fault of the defendants, for it was the breach of duty of their own agent. The case is no better than if the defendants themselves had deposited a worthless check in place of money which they agreed to deposit to the credit of the plaintiffs. The plaintiffs having given no authority to the Manufacturers’ and Mechanics’ Bank to receive the check, were not bound, after the withdrawal of the credit, to abide the result of a litigation with the bank about the cheek. The simple fact was that no money was deposited to the credit of the plaintiffs, and they gave no credit on the faith of the check, and recognised it in no way. The credit they did give was really given nine days before, upon the false or misapprehended letter of the agent that the money had been deposited. But the fact of a deposit was untrue and the credit unfounded. Nor can the plaintiffs be implicated in the delay of these nine or ten days to inform the defendants that the correspondence of the Manufacturers’ and Mechanics’ Bank did not disclose the credit. Cronise & Co. being the agents of the defendants, the plaintiffs cannot be condemned because they relied on their information. During this short interval between the 13th and 22d of December there was nothing to excite suspicion, from the omission of the bank to notify them, to cause the plaintiffs to be very prompt, or to cast upon them a loss caused by the bad faith of the agent of the defendants. The failure of Cronise & Co. was unknown to them, and no good reason, till that became known, existed to cause a doubt of their good faith.

Upon the whole, we are not able to perceive any error in the charge, and the judgment is therefore affirmed.