Dows v. National Exchange Bank of Milwaukee

ERROR to the Circuit Court of the United States for the Southern District of New York.

This is an action of trover, instituted by the National Exchange Bank of Milwaukee to recover damages for the alleged conversion, by the plaintiffs in error, of 22,341 bushels of wheat, which the National Exchange Bank of Milwaukee claimed as its property.

The wheat was purchased in Milwaukee, Wis., by McLaren & Co., in the month of September, 1869, upon orders received from Smith & Co. of Oswego, N.Y., who were in need of it for immediate use, and requested that the drafts on account thereof be drawn on them through the Merchants' Bank of Watertown, N.Y. McLaren & Co. paid for the wheat so purchased, and, to reimburse themselves, shipped it on three vessels, named respectively 'Kate Kelly,' 'Grenada,' and 'Corsican,' and received from the captains of said vessels triplicate bills of lading, which describe McLaren & Co. as the shippers, and by their terms make the wheat deliverable to the account of W. G. Fitch, cashier, care Merchants' Bank, Watertown, N.Y. McLaren & Co. presented drafts drawn on Smith & Co., with the original bills of lading attached thereto, to the National Exchange Bank of Milwaukee. The bank discounted them, placed the proceeds to the credit of McLaren & Co., and retained the original bills of lading. Its cashier, after discounting the drafts, wrote a special indorsement on the back of each bill of lading. The indorsement on that of the 'Grenada' reads as follows:--

'On payment of two drafts drawn by McLaren & Co. on Smith & Co., Oswego, N.Y., to my order, dated Sept. 13, 1869,-one draft at thirty days' date for $8,000, and the other at forty-five days' date for $8,000, both drafts being payable at the Merchants' Bank, Watertown, N.Y.,-you will surrender the within-mentioned wheat to Smith & Co. or order. Should drafts above mentioned not be promptly paid, hold the wheat for my account, without recourse.

'W. G. FITCH, Cashier.

'MILWAUKEE, 13th September, 1869.

'To Merchants' Bank, Watertown, N.Y.'

A similar indorsement, except as to the amounts and dates of the drafts, was made on the bills of lading of the 'Kate Kelly' and the 'Corsican.' McLaren & Co. insured the cargoes for their account from Milwaukee to Oswego, and transferred the insurance certificates to the bank. After making the indorsements on the bills of lading, the cashier enclosed the drafts, bills of lading, and certificates of insurance, to the Merchants' Bank, Watertown, N.Y. The letter enclosing those relating to the 'Kate Kelly' is as follows:--'SEPT. 2.

'To Cashier Merchants' Bank, Watertown, N.Y.:--

'I hand you for collection and remittance to Mercantile National Bank, New York, for my credit,--

McLaren & Co., on Smith & Co., Oswego, $4,080.81 exg.

McLaren & Oct. 5 7,500.00 exg.

McLaren & Oct. 20 7,500.00 exg.

B. L. schr. 'Kate Kelly,' 8,727 bushels Amber Mil. wheat.

B. L. schr. 'Kate Kelly,' 5,527 2/6 0/0 bushels No. 1, Amber Mil.

wheat, consigned to your bank for my account, and to be held by you subject to the payment of the above drafts.

Insured North-western Nat. Ins. Co. $5,000

Nat. Ins. Co., Boston 5,000

AEtna Ins. Co., Hartford 5,000

Republic Ins. Co. 5,000

Security Ins. Co. 4,000

'I consign this wheat to you, to be held as per indorsed bill of lading, and surrender only on payment of the drafts drawn against it, holding you responsible for the same in case of non-payment of the drafts. Will you receive consignments in this way, charging reasonably for the same?

'Yours truly,

'W. G. FITCH, Cashier.'

On the 6th of September, 1869, J. F. Moffatt, cashier of the Merchants' Bank, acknowledged the receipt of the letter and its enclosures.