Exchange National Bank of Pittsburgh Pa v. Third National Bank of the City of New York

John R. Emery and ''Thos. N. McCarter'', for plaintiff in error.

A. Q. Keasbey, for defendant in error.

The Exchange National Bank of Pittsburgh, Pennsylvania, brought this suit against the Third National Bank of the city of New York, in the circuit court of the United States for the district of New Jersey, to recover damages for the alleged negligence of the defendant in regard to 11 drafts or bills of exchange indorsed by the plaintiff to the defendant for collection. The suit was tried before the court without a jury. It made a special finding of facts and rendered a judgment for the defendant, to review which the plaintiff has brought this writ of error.

The facts found are these, in substance: The drafts were drawn by Rogers & Burchfield, at Pittsburgh, to the order of J. D. Baldwin, and by him indorsed, on 'Walter M. Conger, Sec'y Newark Tea Tray Co., Newark, N. J.,' and were discounted before acceptance, by the plaintiff, at Pittsburgh, for the drawers. They bore different dates, from June 8, 1875, to September 20, 1875, and were in all other respects similar except as to the sums payable, and in the following form:

'$1,042.75.

PITTSBURGH, June 8, 1875.

'Four months after date, pay to the order of J. D. Baldwin     ten hundred and forty-two 75-100 dollars, for account      rendered, value received, and charge to account of

ROGERS & BURCHFIELD.

To Walter M. Conger, Seo'y Newark Tea Tray Co., Newark, N.     J.

They were transmitted for collection at different times before maturity by the plaintiff to the defendant in letters describing them by their numbers and amounts, and by the words 'Newark Tea Tray Co.' They were sent by the defendant to its correspondent, the First National Bank of Newark, inclosed in letters describing them generally in the same way, except that, in two of the letters, they were described as drawn on 'W. M. Conger, Sec'y.' The drafts were received by the defendant in New York within a day or two of the time of discounting them. They were presented by the First National Bank of Newark to Conger for acceptance, who, except in one instance, accepted them by writing on the face these words: 'Accepted, payable at the Newark National Banking Co. WALTER M. CONGER.' When the acceptances were taken, the time of payment was so far distant that there was sufficient time to communicate to the plaintiff the form of the acceptance, and for the plaintiff thereafter to give further instructions as to the form of acceptance. The Newark bank held the drafts for payment, but the plaintiff was not advised of the form of acceptance until, on the thirteenth and nineteenth of October, two of them were returned to it by the defendant. At that time the drawers and indorsers were insolvent, but the drawers were in good credit when the drafts were discounted by the plaintiff. The drafts were duly protested for non-payment, but none of them were paid. The Newark Tea Tray Company is a New Jersey corporation doing business in that state, and Walter M. Conger is its secretary. The drafts were represented to the plaintiff by Burchfield, one of the drawers, who offered them for discount, to be 'the paper of the Newark Tea Tray Company' drawn against shipments of iron by Rogers & Burchfield to that company, and were discounted as such by the plaintiff. He also represented that Walter M. Conger was the person who examined the shipments of iron and 'accepted the drafts,' and that they were drawn in this form for the convenience and accomodation of the company. On drafts of Rogers & Burchfield on the 'Newark Tea Tray Co.,' dated May 4, 1874, May 20, 1874, and June 30, 1874, discounted by the plaintiff, and transmitted for acceptance to the defendant, and by it sent to the same Newark bank, that bank took acceptances from Walter M. Conger individually, without notice to the plaintiff; and Conger, during the time drafts sent by the plaintiff to the defendant, addressed to the 'Newark Tea Tray Co.' and to 'Walter M. Conger, Sec'y Newark Tea Tray Co., Newark, N. J.,' were in the hands of the Newark bank to procure acceptance, informed the cashier of the Newark bank that he would not accept these drafts in his official capacity as secretary.

[Argument of Counsel from pages 278-280 intentionally omitted]

BLATCHFORD, J.