The President and Directors of the Bank of Washington v. Triplett & Neale

TRIPLETT & NEALE, the appellees, instituted a suit in the Circuit Court for the District of Columbia, against the President and Directors of the Bank of Washington, the appellants; for mal-agency in relation to an inland bill of exchange, dated Alexandria, 19th June, 1817, drawn by W. H. Briscoe, for 625 dollars 34 cents, at four months after date, in favour of Triplett & Neale, upon Peter A. Carnes, Esqr. 'Washington City.' About the 19th of July, 1817, the plaintiffs, being the holders and the proprietors of the bill, placed it in the hands of the Cashier of the Mechanics Bank of Alexandria, for the purpose of its being transmitted to a bank in Washington for collection, they endorsing it in blank for that purpose. The bill, after being endorsed by the Cashier of the Bank, to the order of 'S. Elliott, Jr. Esqr.' was sent by mail to the Bank of Washington, of which Mr. Elliott was then Cashier; together with other bills and notes, without any statement of interest or ownership in the same, by Triplett & Neale. On the 19th October, 1817, the Cashier of the Mechanics Bank of Alexandria, informed the Cashier of the Bank of Washington, that 'the holder of the draft desired, that if the draft should not be paid, a notary should send a notice to P. A. Carnes, Baltimore, and to Mr. W. H. Briscoe, at Lessburgh, provided the bill should not be paid in Washington.' On the 24th October, 1817, the draft was returned to the Mechanics Bank of Alexandria, it having been protested, for non-payment, on the 23d of October; the drawer and endorser having been regularly notified of the non-payment by the notary. When the bill was received in Washington, on the 21st July, 1817, the drawee was not to be found; one of the officers of the Bank having sought him, in order to present the bill to him, and who was informed that he was in Baltimore. This inquiry was repeated three or four days afterwards, with the same results, of which the Cashier was informed. No notice of the non-acceptance of the bill was given by the Bank of Washington to the drawer or to the endorser. Evidence was given, by the defendant below, of the custom in the banks of the city of Washington, and particularly of the defendants, as to the mode of treating bills, when the drawee could not be found, and as to the practice of protesting or not protesting such bills, for non-acceptance. Evidence was also offered, as to the incompetency of Carnes and Briscoe to discharge the bill, at the time of its non-payment; and that since the said period, Briscoe had inherited an estate.

The appellants, on the trial of the cause, requested the Court to instruct the jury:--

1st. That on the evidence, if believed by the jury, the plaintiffs could not recover.

2d. That the plaintiffs are not entitled to recover, for and of recourse against Briscoe, the drawer of the bill.

3d. That the failure of the defendants; after having called at the residence of the drawee of said bill, to obtain his acceptance thereof, as stated in the evidence of Reilly, and non finding him or any other person there, to accept the said bill; to notify the drawer of that circumstance, was not such a negligence as discharged the said drawer from his liability on said bill; and entitles the plaintiffs to recover.

4th. That if they believe, from the evidence, that the defendants conformed to their former usage in regard to such bills as the one in question, in calling on the drawee for acceptance, the said drawee being from home, and not noting the same as dishonoured, and giving notice thereof to the parties on the said bill; then their failure to treat the said bill as dishonoured, and to give notice accordingly, of its non-acceptance, did not discharge the drawer thereof from his liability to the plaintiffs. All of which instructions were refused by the Court, and a verdict was given against the Bank of Washington for the whole amount of the claim. The defendants below took a bill of exceptions, to the opinion of the Court, upon the propositions stated; and thereupon prosecuted this writ of error.

Mr. Key, for the plaintiffs in error. There was no privity between the plaintiffs below, and the Bank of Washington; the bill was sent to the Bank of Washington, by the Mechanics Bank of Alexandria, and it was not known that Triplett & Neale were in any manner interested in it. Before a contract can be presumed to have been made with them to collect the bill, their interest should have been communicated; 2 Caines, 341. The plaintiff in error should have had the opportunity to accept or reject the inquiry, as the collection of the draft was only an act of courtesy. The law is with the plaintiffs in error on this point. 6 Taunton, 147 1 Vesey jun. 291-2 Johnson, 204. In the last case, a notary public gave notice of the non-payment of a note to one endorser, and failed to notify a prior endorser; the last endorser having paid the note, it was decided that a suit could not lie against the notary public for laches, he being liable only to the holder of the note.

2d. Negligence, and loss in consequence of it, must be shown.

The bill was payable four months after date, and it is not necessary to present such a bill for acceptance. Chitty on Bills, 205-Philadelphia edition, 1821: as to responsibility, where prejudice has not arisen; Beawes Lex. Merc. 544, 491, was cited, as to the mode of presentation of such a bill-Starkey's Evid. 4, part 456.

3d. If the Bank of Washington was bound to present the bill, the negligence of the plaintiffs in error to do this, should have been stated specially in the declaration; and the loss thereby specially averred; 2 Espin. 16-2 Wilson, 325.

4th. The conduct of the Bank was according to their established customs, and to the practises in other banks, and if they acted bona fide, they should not be charged with the amount of the bill. The usage is, to protest the bill on the fourth day after the nominal day of payment, and the day after the three days of grace. The rule and practice as to non-acceptanced bills, is the same in this particular, with those which have been accepted.

Mr. Jones, for defendants in error. The claim of the defendants in error, is founded upon the gross negligence of the Bank-and this is fully made out by the testimony.

1. As to the absence of privity between the parties of this suit. The custom to collect notes for individuals, which prevailed among all banks, and the fact that no other interest existed in the bill, but that of Triplett & Neale, are sufficient to establish privity between the parties to the action. A suit upon a contract made by an agent, may be brought in the name of the principal; although his interest in the contract does not appear on its face.

2. Negligence is charged in the declaration throughout; and by the usages of the Bank, particularly of the present Bank of the United States, if the drawee be absent when the bill is received, and does not call at the bank and accept, after notice left at his residence, the bill is protested, and notice given.-In this case, the bill should have been protested on the day it became due, without waiting the days of grace, which are only allowed, when the bill has been accepted. Mr. Jones cited the case of M'Gruder vs. the Bank of Washington. 9 Wheat. 598.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.--