ÆäÀÌÁö À̹ÌÁö
PDF
ePub

ceeds to the credit of Brown, whereupon Brown drew a check upon the bank for $5,000, which the bank certified; that Brown took this certified check to the defendant, who cashed it for him, whereupon Brown disappeared; that by mistake Brown failed to indorse the check when he delivered it to the defendants; that, while the defendants held this check unindorsed, the plaintiff demanded its return, and, upon their refusal to return it, an action to recover its possession was commenced. It was decided that the purchaser of a draft or check who obtains title without an indorsement by the payee holds it subject to all equities and defenses existing between the original parties, even though he has paid full consideration, without notice of the existence of such equities and defenses; that, the payee having taken title by assignment-for such was the legal effect of the transaction-the defense of the bank against Brown became effectual as a defense against a recovery on the check in the hands of the plaintiffs as well; that, as between the bank and Brown, Brown had no right to enforce the transfer of the check without indorsement, and the plaintiffs, who had acquired Brown's title to the check, could not recover.

It was not disputed in either of these cases that if the bank had certified the check at the request of the holder, who had a good title to it as against the payee, and where there were no equities between the drawer and the payee, or the drawer and the bank, the bank would be bound to pay the check to the holder at whose request it had been certified. Neither of these cases is an authority against the right of the plaintiff to enforce this contract made between the bank and the holder of the check by the certification. Nor can it be that the fact that the bank did not inquire who was the owner of the check when it certified it, or with whom it was making a contract to pay the check, can affect the legal liability of the bank to the person with whom the contract was made. If the certification of the check operated as an assignment of the amount on deposit by the drawer, the holder of the check became the creditor, and entitled to enforce the obligation of the bank to pay the amount on deposit. As was said in Freund v. Importers' & Traders' Nat. Bank, supra:

"If Blun & Sons were then the holders and owners of it [the check], with such right as that they could enforce it against the makers, the certification of it by the defendant had all the legal effect which the same certification would have had, had it been indorsed by the payees. That legal effect is the same as if the defendant had paid the money upon it, with the proper indorsement upon it of the payees. By the certification of a negotiable check, properly negotiated, the depositary of the fund checked upon becomes liable to the owner of the certified paper, and is bound to have in readiness the money to meet it, from the fund drawn upon. When the check is not negotiable, or has not been indorsed, but has by assignment come into the hands of a lawful owner, who has a right to enforce it against the maker, the effect is the same."

The drawer of this check, having been indebted to the payee, sent this check to discharge this indebtedness, and the payee having transferred for a valuable consideration the check to the plaintiff, who thereupon became the holder and owner thereof, and entitled to enforce it against the drawer, and the holder having presented it to the bank, the bank, upon certifying it, became the principal debtor, and liable to the legal holder of the check for the amount called for by it.

and 122 New York State Reporter

I think, therefore, there was a good cause of action in favor of the plaintiff against the bank upon this certified check which entitled the plaintiff to recover, and that the judgment and order appealed from must be affirmed, with costs.

VAN BRUNT, P. J., and HATCH and O'BRIEN, JJ., concur.

MCLAUGHLIN, J. (dissenting). The plaintiff cannot hold the judgment which he has recovered unless the bank certified the check for him. In this the court is in entire accord. The real question, therefore, is whether the bank did in fact certify the check for the plaintiff; and I am unable to agree with the other members of the court that it did. The check was drawn by one Johns, payable to the order of Mrs. Muir, and when it was presented to the bank for certification it had not been indorsed by, nor was anything said to indicate to the certifying officer that it had been delivered to, her. The messenger who took the check to the bank for certification did not know the teller who certified the check, nor did the teller know him. Under such circumstances, I think we should hold that the certification was for the maker of the check, and not for the plaintiff, who happened to be the holder. Before a check can be said to have been certified for the holder, there must be something on the check itself to indicate that it has been delivered by the maker to the payee, or else satisfactory information to this effect must be given to the bank. A certification of a check at the request of a maker adds to his obligation that of the bank, whereas a certification at the request of the holder, after the check has been delivered, releases the maker and all prior indorsers (First Nat. Bank of Jersey City v. Leach, 52 N. Y. 350, 11 Am. Rep. 708; 5 Am. & Eng. Enc. of Law, 1055); and this is upon the ground that the holder could take the money called for by the check, instead of the certification, if he so desired. While this distinction is of no great importance in the case presented, it is of the utmost consequence in commercial transactions, many of which are now carried on by means of certified checks. In the present case, if the certification were for the maker of the check, then, had the bank failed, the plaintiff could have called upon him to make the same good; but, if it were for the holder, the plaintiff alone would have sustained the loss. If I am correct in concluding that upon the facts the certification was for the maker, then it necessarily follows that the judgment must be reversed, because, when the check was certified, there was attached to it an implied condition that it would not be paid until the same was properly indorsed by the payee. Goshen v. Bingham, 118 N. Y. 349. 23 N. E. 180, 7 L. R. A. 595, 16 Am. St. Rep. 765; Lynch v. First Nat. Bank of Jersey City, 107 N. Y. 179, 13 N. E. 775, 1 Am. St. Rep. 803. Nor does this view, as it seems to me, conflict with Freund v. Importers' & Traders' Nat. Bank, 76 N. Y. 352. In that case Freund was a depositor in the defendant bank. He drew his check to the order of M. Oppenheimer & Sons, who, without indorsement, delivered it to N. Blun & Sons. N. Blun then indorsed upon the check the following: "M. Oppenheimer & Sons by N. Blun. N. Blun & Sons." It thus appeared upon the check itself that N. Blun was the holder, that the check was no longer in the possession of the maker, and that the payees,

M. Oppenheimer & Sons, had delivered the possession of it without indorsement to N. Blun. The bank, therefore, if it saw fit, could certify the check for him, notwithstanding the fact that it had not been indorsed by the payees; and this is all that case holds. It certainly falls far short of holding, where one who has obtained possession of a check, negotiable only by indorsement, sends it to the bank for certifica-" tion by a messenger who does not know and who is unknown to the certifying teller, and the bank, nothing being said, certifies it, that that amounts to an agreement with the holder that the check will be paid when presented, irrespective of the indorsement.

There are several other errors alleged by the appellant, but the view which I entertain renders it unnecessary to here consider them.

I think the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

(94 App. Div. 342.)

ROBERGE v. BONNER et al.

(Supreme Court, Appellate Division, First Department. May 13. 1904.)

1. APPEAL-HARMLESS ERROR-UNDISPUTED ISSUES.

Where the making of a contract was the one substantial dispute on the trial, and the verdict rendered did substantial justice between the parties, and no material error was committed relating to the particular issue in dispute, the appellate court will not reverse the judgment because of errors affecting other issues.

2. EVIDENCE-ADMISSIONS-PROBATIVE FORCE.

Verbal admissions uncorroborated by other facts or evidence should always be received with great caution, and admissions, made in the course of a casual conversation, after a great lapse of time are of little probative force.

3. CONTRACTS WITH DECEASED PERSONS-EVIDENCE-ESTABLISHMENT.

Contracts claimed to have been made by deceased persons to be enforced after death are to be regarded with grave suspicion, and the testimony upon which they are sought to be sustained closely scrutinized; and claims thereunder should be allowed only when established by strong and convincing evidence.

4. SAME-EVIDENCE-SUFFICIENCY.

Evidence, consisting largely of conversations had years before, held insufficient to establish a contract by which defendant's decedent agreed to assure to plaintiff the sum of $100,000 upon his (decedent's) death. 5. SAME-EVIDENCE-ENTRIES IN BOOKS-RELEVANCY.

Entries made by decedent in a book as to opinions expressed by plaintiff as to the proper treatment of horses, while competent to show that decedent had employed plaintiff, had there been any dispute about that matter, were irrelevant to the issue as to whether decedent had agreed to give plaintiff a sum of money in consideration of services on his (decedent's) death.

6. SAME.

Conversations with executors, and a communication sent by plaintiff to them in relation to a claim against the estate, are irrelevant to the question as to whether the executor's decedent made a certain contract with plaintiff.

Van Brunt, P. J., and Hatch, J., dissenting.

and 122 New York State Reporter

Appeal from Trial Term, New York County.

Action by Franklin P. Roberge against Robert E. Bonner and others as executors and executrix of the will of Robert Bonner, deceased. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Rastus S. Ransom, for appellant.
William N. Cohen, for respondents.

INGRAHAM, J. The plaintiff asks for a judgment for $100,000 against the estate of Robert Bonner, deceased, upon an alleged agreement by which Robert Bonner agreed to assure to the plaintiff that sum upon his death. The question whether or not such a contract was made was submitted to the jury, who found a verdict for the defendant; and this appeal is based upon errors committed at the trial, mainly those in relation to the admission of evidence. The substantial question submitted to the jury was whether or not the contract or agreement sued on was ever made; and, the jury having found upon that issue in favor of the defendant, it would be manifestly unjust to reverse the judgment unless there were errors of a substantial character which affected that issue, as that was the only issue about which there was any substantial dispute. The witnesses for the plaintiff, as well as those for the defendant, testified that the plaintiff had rendered services to Mr. Bonner from the time it is alleged this contract was made to the time of his death, and that Mr. Bonner constantly consulted with him about his horses; and it is evident that if a valid contract, such as is alleged in the complaint, had been made, the plaintiff would have been entitled to the direction of a verdict in his favor. The making of the contract was the one substantial dispute upon the trial, which has been resolved in favor of the defendant, and if that verdict did substantial justice between the parties, and there was no material error committed which had relation to that particular issue, an appellate court is not required, in the administration of justice, to reverse the judgment because of errors which affected other issues which were not in substantial dispute. There was no question as to the value of the plaintiff's services. The cause of action, as alleged in the complaint, is that between the 15th day of May, 1876, or thereabouts, and the 6th day of July, 1899, in plaintiff rendered services to said Robert Bonner, at his request, as a veterinary surgeon, and provided and administered divers medicines and furnished other material in that behalf for said Robert Bonner, at his request; that the said work, labor, and services were performed and medicines and materials were furnished by the plaintiff for said Robert Bonner upon the express oral agreement, entered into by and between the plaintiff and Bonner at the city of New York on or about the 15th day of May, 1876, whereby said services should be done and performed by plaintiff during the lifetime of said Robert Bonner, and said Robert Bonner, in consideration thereof, and instead and in lieu of making payments for same as they were rendered, or periodically, promised to pay to the plaintiff the aggregate sum of $100,000 before his death, or

to provide for the payment of said sum to the plaintiff by his last will and testament.

Of the many attempts that have been made to recover by an action at law because of disappointed expectations as to the disposition of a dead man's property, this is the first case, to my knowledge, in which it has been alleged that a person in the full possession of his faculties and in middle life has agreed to pay such a sum of money to an entire stranger, not connected with him by blood, for services to be rendered; and from the very nature of the contract alleged and the nature of th proof to support it, to which attention will be called, the claim itself must be looked upon as one most unusual and improbable. The contract is alleged to have been made on the 15th day of May, 1876. Mr. Bonner, a man of large wealth and important business interests, lived until 1899-over 23 years. It is not alleged that during all that time any claim of any character or description was made against him, based upon this contract. It is conceded that during all that period he had employed the plaintiff to shoe his horses, both in New York and at his country place; that during this period of 23 years the plaintiff furnished monthly bills for the services that he rendered to Mr. Bonner, which bills were always promptly paid upon presentation. There is evidence that, in addition to receiving payment of the monthly bills from Mr. Bonner, the plaintiff borrowed money of Mr. Bonner, which was repaid, without a claim of any kind, so far as appears, that Mr. Bonner was indebted to the plaintiff in any amount except what had been promptly paid upon a presentation of the bills therefor. The evidence to sustain this contract consists entirely of alleged declarations made by Mr. Bonner to four individuals, in no way connected with him, but who are all connected with the plaintiff; two being horseshoers who had been in the employ of the plaintiff, one being the plaintiff's brother, who was also a horseshoer, and the fourth a person who had been employed by the plaintiff at various times. So far as appears, no member of Mr. Bonner's. family, and no friend or acquaintance, had ever heard of such an agreement. These alleged admissions of Mr. Bonner were made over 18 years after the contract was alleged to have been made. Thus, so far as appears, for over 18 years Mr. Bonner was under an obligation to pay $100,000 to the plaintiff without any communication of that fact to any one. The evidence is undisputed that Mr. Bonner was much attached to horses, having purchased and owned some of the fastest and most valuable horses in the country. He was careful in his business affairs, always paying his bills promptly, and he had had a large experience with horses, considered himself qualified to treat them himself, always attended and gave instructions about them, and insisted upon having his views carried out. The plaintiff's father came to this country in the year 1869, and in the spring of 1870 he opened at horseshoeing establishment in the city of New York. It appeared that he had made a particular study of horses' feet, and had written a book on that subject; and after he came here Mr. Bonner employed him to shoe his horses, and subsequently it would appear that they consulted together about horses and the proper method of shoeing them. This relation continued for several years. In 1876 the plaintiff's father had an establishment in Thirtieth street, and the plaintiff, then about 21 years.

« ÀÌÀü°è¼Ó »