Coal & Iron Nat. Bank of the City of New York v. Suzuki

• Citation: 3 F.2d 764
• Decision Date: 03 November 1924
• Docket Number: No. 19.,19.
• Parties: COAL & IRON NAT. BANK OF THE CITY OF NEW YORK v. SUZUKI et al.
• Court: U.S. Court of Appeals — Second Circuit

3 F.2d 764 (1924)

COAL & IRON NAT. BANK OF THE CITY OF NEW YORK v. SUZUKI et al.

No. 19.

Circuit Court of Appeals, Second Circuit.

November 3, 1924.

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Cook, Nathan & Lehman, of New York City (Harold Nathan, of New York City, of counsel), for plaintiff in error.

Hunt, Hill & Betts, of New York City (George C. Sprague and Joseph A. Barrett, both of New York City, of counsel), for defendants in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

Obviously Suzuki could not recover upon all of the pleaded causes of action. The denial of motions to dismiss all but one of the causes of action must have been error; but, both parties having finally moved for a directed verdict, both are concluded by whatever finding the court made. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654. To the same effect, Bank of the State v. Southern Bank, 170 N. Y. 1, 62 N. E. 677. In favor of the verdict, therefore, it is the duty of this court to sustain the judgment if, upon any view of the testimony, a verdict could have been rendered productive of the judgment below and consonant with any one of the causes of action.

The plaintiff evidently brought this action at law upon some kind of a contract imposing some pecuniary duty upon the bank in favor of Suzuki. Therefore one first asks: Did the bank have any contract of any kind with Suzuki? Upon this point a question of fact was presented, which should have gone to the jury, but which both parties avoided by moving for a directed verdict. That question is whether the story of Suzuki's clerk or that of the bank official as to what happened on September 20th was the truth. If the bank's story was true, then the moment that Suzuki's clerk, duly authorized, handed back to the bank its letter of September 17th, and said it was not satisfactory, Suzuki (the offeree) had met the bank's offer with a counter demand — a demand from which Suzuki never receded, and to which the bank never acceded; therefore there was no contract. But, if the story of Suzuki's messenger was true, then the offeree might be thought to have positively and unequivocally accepted the bank's offer, no matter whether the request for an additional clause was granted or refused. Williston, Cont. vol. 1, § 79. This is plainly a question that a jury might have answered either way; for the return of the letter as unsatisfactory was most persuasive of no contract (American, etc., Co. v. Moskowitz, 159 App. Div. 382, 144 N. Y. Supp. 532); whereas, if the letter was pronounced satisfactory, that fact plus the bank's subsequent letter writing was persuasive that a contract had been formed.

In favor of the verdict we must hold that the court below found a contract; i. e., whatever contract can be spelled out of the letters of September 17th, 22d, and 26th. Here it makes no difference what kind of a contract the offeree (Suzuki) intended to accept; for such intention is wholly immaterial, except as it is expressed at the time of acceptance. Williston, Cont. vol. 1, § 66. Considering these letters, it is plain there never was a contract such as is set forth in the first and second causes of action, for never at any time did the bank agree with Suzuki, not only to hold a certain sum of money on deposit, but to pay that money over to him. There was no assumpsit on the bank's part, and that the first and second causes of action sound in assumpsit is too plain for argument.

The language of the charter party is immaterial, so far as concerns the bank. That corporation assuredly did not in terms execute a guaranty, and it cannot be inferred that it ever intended so to do, because it is an improper inference that the unlawful was intended. Corporations generally, in the absence of special statutory powers, are without authority to enter into such a contract (In re Rose Co. C. C. A. 275 F. 416); and specifically has a national bank no power whatever to become a guarantor of the obligations of another (Bowen v. Needles Bank, 94 F. 925, 36 C. C. A. 553).

It follows that the judgment must rest solely on the third cause of action. If it be assumed that the letters referred to constitute a contract for the benefit of Suzuki, the question of the nature and extent of the bank's obligation remains. The allegation is of an agreement to receive from Ellsworth and maintain a special deposit equal to one-half month's hire of the chartered steamship, which amount was in the language of the complaint "payable to" Suzuki immediately upon Ellsworth's default. It can have been only upon this reading of the contract that plaintiff below recovered.

But, as above pointed out, the bank never did and never could enter into a contract of guaranty; it did not and could not undertake the fulfillment of the guaranty requirement of clause 29 of the charter....