Attleborough National Bank v. Rogers

• Decision Date: 28 September 1878
• Citation: Attleborough National Bank v. Rogers, 125 Mass. 339 (Mass. 1878)
• Court: Supreme Judicial Court of Massachusetts
• Parties: Attleborough National Bank v. Harry A. Rogers & others

125 Mass. 339

Attleborough National Bank v. Harry A. Rogers & others

Supreme Court of Massachusetts

September 28, 1878

[Syllabus Material][Syllabus Material]

Suffolk.Contract for money had and received by the defendants to the plaintiff's use.Answer, a general denial.

At the trial in the Superior Court, before Wilkinson, J., at April term 1877, it appeared that the plaintiff was a national bank, organized in 1866, under the banking laws of the United States, and that it was in the habit of investing its available funds to a considerable extent in commercial paper.The defendants were brokers in Boston, engaged in selling commercial paper.

On September 27, 1875, the defendants wrote to the plaintiff that they had three notes of C. & M. Cox, describing them, which it could have at a rate named, if desired.The plaintiff had before that time purchased notes of C. & M Cox of the defendants.On Wednesday, September 29, 1875 Evans, the president, and Whitney, a director of the plaintiff bank, came to the defendants' place of business to get some notes for the bank.They testified in substance that they informed the defendant Rogers that they wished to get for the bank good notes to the amount of about $ 20,000, and he thereupon produced and made a selection from a large number of notes, remarking that there was a lot of good notes, as they could see from the large number he had selected from; that out of this number they took twelve notes, amounting to between $ 26,000 and $ 27,000; that they knew nothing of the responsibility of the makers of any of the notes and relied wholly on Rogers's knowledge concerning it, that Whitney then said, "We shall want a few days to decide whether we will keep this paper," to which Rogers assented; and thereupon Evans said, "We shall want until Monday to submit it to the board of directors, as no one has authority to take it without the action of the board, and the board meets on Monday;" to which Rogers replied, "You can keep it until Monday, and return any or all of it, as you like."

Rogers testified in substance that Evans and Whitney came in on Wednesday, September 29, and asked him if they still had the Cox paper, and he told them he had two pieces of it, but that he had sold one; that Evans said, "We will take that;" that he went and brought out the bundle of notes in which were the two Cox notes in question, and took the Cox notes out and handed them to Evans, who took them and placed them one side, saying, "We will take these, any way, and now we want you to select us enough more to make up about $ 20,000 or $ 25,000;" that thereupon he selected from his bundle ten notes more, making up the amount to that named, stating to them that the notes were of the best quality, and showing them his sales book, referring to the banks and other parties who had bought notes of this description, and the rates; that he then said to them, "You can have a day or two if you desire, to decide whether you wish to purchase any of this paper or not," referring to the ten notes which he had thus selected; that Evans then said they would like to have until Monday, to which he assented; that no reference was made to their books as to the character of the Cox paper, and nothing was said about it, except to ask for it, and when it was produced to say, "We will take that any way;" and that nothing was said to him then, or on any other occasion, about referring the question of purchase to the board of directors.

Rogers gave the twelve notes thus selected to his clerk to make up the bill according to the rates expressed, and subsequently on the same day Whitney came in and took the notes and bill to the bank.On Thursday, September 30, the cashier of the bank wrote to the defendants a letter inclosing three of the twelve notes, other than the two Cox notes, and a check for the amount of the balance, which letter the defendants received the same day, about 7 o'clock, P. M. At 2 o'clock of Thursday, September 30, C. & M. Cox suspended payment, and their paper went to protest, and certain officers of the plaintiff bank heard of the failure on Friday or Saturday following.

On the Monday morning following, the president and cashier of the bank applied to the defendants to take back the Cox notes which they declined to do, the officers of the bank contending that they had the right to return any or all of the notes taken on September 29 on or before Monday, and the defendants denying their...