Hill v. Nation Trust Co.

Mr. Justice Sterrett

delivered the opinion of the court, January 5th, 1885.

In our practice, a peremptory nonsuit is in the nature of a judgment for defendant on demurrer to evidence ; and hence, in testing the validity of such nonsuit, the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them: Maynes v. Atwater, 7 Norris, 496. It is immaterial that the evidence in support of- a plaintiff’s claim may be very slight, provided it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to the well-settled rule, be submitted to the jury. It is their exclusive province to pass upon- the credibility of witnesses, weigh the evidence and ascertain the facts: Express Co. v. Wile, 14 P. F. S. 201.

The defendants, on whom the check in suit was drawn, were an unincorporated association doing a general banking business in the name of the “Nation Trust Company.” Their copartnership relation in that business is not controverted.

The check, drawn by Michael O’Hara to his own order, after being indorsed and delivered by him to Andrew J. Baum, was presented by the latter at the counter of the company’s bank; but, instead of being paid, it was marked “ Good, T. D. Blair, A. teller,” and returned to Baum, who shortly afterwards passed it by delivery.to plaintiff. The presumptive' title of plaintiff, as bona fide holder of the certified check, was fortified by testimony tending to prove, not only that Baum was a holder for value without notice of any defect, but that plaintiff was likewise an innocent purchaser for value. Under these circumstances, nothing more was required, to make out a prima facie case for plaintiff, than to show an acceptance or certification of the check, on behalf of defendants, by an agent in their employ, authorized to bind them by that form of contract. It was not necessary to show that the agent’s authority to certify checks embraced cases in which the drawer had no funds. If his authority, as between himself and his principals, was'in fact restricted to cases in which the drawer had sufficient funds, and he, either intentionally or by mistake, transcended that authority by marking the check “ Good ” when the drawer thereof had no funds, the consequences of his infidelity or blunder should be visited, not upon the innocent holder of the check so certified, but upon the agent’s employers who put it in his power to commit the wrong.

It was conceded that Blair, by whom the check was marked “Good,” was then an employee of the company defendant; and, for the purpose, of showing that he was authorized to do wliat he did, plaintiff introduced testimony tending to prove that he was then and for a considerable time before had been employed by the company as assistant teller; that he so acted in that capacity as to justify the inference that he was either directly authorized to certify checks, or that he did so with the knowledge and tacit consent of his employers. Blair himself testified he was in the employ of the company as assistant teller, and in that capacity certified the check in suit, not only under a general authority from the cashier to do so, but his impression was that the cashier specially directed him to certify the check in question. As to the fact of general authority to certify checks, and that his acts in so doing were knowingly acquiesced in and ratified by the company, he was corroborated by an officer of the German National Bank, who testified in substance that from 1869 to 1873, he saw quite a number of such checks bearing the certificate of Blair, as assistant teller; that the certified checks came into the possession of his bank through the clearing house, and were duly honored by the Nation Trust Company. In addition to this, Baum testified that when the cheek was presented for payment he exhibited it not only to the officers of the bank lout also to some of the directors who were present; that instead of objecting to the certification as unauthorized, they merely explained why it was not convenient for them to pay the check at that time.

The testimony thus briefly noticed was quite sufficient to carry the case to the jury on the question of Blair’s authority, as assistant teller, to certify checks, and thus render defendants liable to bona fide holders thereof for value. If the case had been submitted, under proper instructions, the jury might have found in favor of plaintiff. The testimony, if believed, would have warranted them in so doing. Assuming it to be true, as testified by the teller of the German National Bank, that checks, bearing Blair’s certification, frequently passed through the clearing house and were duly honored b}*" defendants, it is highly improbable they were ignorant of the facts. If they knew he assumed to represent them -in that manner and tacitly acquiesced therein, they are not in a position to repudiate his acts as unauthorized. If, by a course of "dealing which they knowingly permitted, they have rendered themselves liable to bona fide holders of checks certified by one of their employees, what reason have they to complain ? These and other inquiries, naturally suggested by the evidence, were clearly proper for the consideration of the jury; and, hence, we think there was error in directing a nonsuit.

The attempt to prove custom, as an independent foundation for Blair’s authority to certify the check in question, was not successful. The testimony failed to show any such general and uniform usage on the subject as would justify the inference that authority to certify checks is a generally recognized incident of the office of teller or assistant teller. It is, morever, a grave question, whether such an usage is not essentially bad, for the reason that it is in effect a power to pledge the credit of the bank to its customers. But, the question does not necessarily arise in this case, and hence we forbear expressing any opinion as to its merits.

Judgment reversed and a procedendo awarded.