Bank of British North America v. Cooper

• Decision Date: 22 December 1890
• Citation: 137 U.S. 473,34 L.Ed. 759,11 S.Ct. 160
• Parties: BANK OF BRITISH NORTH AMERICA v. COOPER
• Court: U.S. Supreme Court

137 U.S. 473

11 S.Ct. 160

34 L.Ed. 759

BANK OF BRITISH NORTH AMERICA v. COOPER.

December 22, 1890.

S. P. Nash, for plaintiff in error.

John M. Bowers, for defendant in error.

BREWER, J.

This was an action at law, brought by the defendant in error in the circuit court of the United States for the southern district of New York. The trial resulted in a judgment in his favor, and the defendant there has brought such judgment here on error. As the case was tried before a jury, contested facts must be accepted to be as alleged by the plaintiff, because resolved in his favor y t he verdict. Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. Rep. 33. The facts thus established are these: For some years prior to the transaction in controversy the plaintiff, Cooper, had had business relations with the firm of Martin, Turner & Co., of Glasgow, Scotland. In consequence of these relations, he had had frequent occasions to remit money to that firm, and many of such transactions had been carried on through the agency of the defendant. He had, on December 14, 1883, drawn a draft on the firm of Martin, Turner & Co. for 5,000 sterling, which became due on the 29th of February, 1884. It was his duty to provide funds for the payment of that draft, and the defendant knew that such was his duty. The duty was his; the moneys therefor were his. The defendant had an office in London, as well as in New York. On the 26th of February Cooper called at the office of defendant in New York, and purchased and paid for a cable transfer of 5,000 to Martin, Turner & Co. The bill which he received was in these words:

'New York, 26th Feb., 1884.

'W. B. Cooper, Jr., Dr., to the agents Bank of British North America, 52 Wall street, for cable transfer on the Bank of British North America, London, in favor of Martin, Turner & Co., Glasgow, 5,000

5,000 pounds, at 4.90 1/2.......... $24,525

Cost of cable........................... 2

---------

$24,527"

The cable message was in cipher, and the ciphers theretofore arranged with Cooper represented the following phrases: 'Martin, Turner & Co., Glasgow, ac. W. B. Cooper, Jr.,' and 'Martin, Turner & Co., 3 Market Buildings, 29 Mincing Lane, ac. W. B. Cooper, Jr.' Beyond this was an arrangement for transmission by telegraph from London to Glasgow, which involved an additional expense. When Cooper called to purchase this cable transfer, he was asked whether he wished transmission by telegraph or mail, and answered that he wanted a check mailed to Glasgow. So the contract established by the verdict of the jury, in accordance with his testimony, was one for the transmission by mail of a check from London to Glasgow for the 5,000. The cable directing such transfer was sent as ordered; but the London office, instead of forwarding a check to Glasgow, on the 27th of February, deposited the amount in the Bank of Scotland, at London, to the credit of Martin, Turner & Co. It did this on the strength of a request communicated to it by Martin, Turner & Co., some months prior thereto, to deposit with the Bank of Scotland, in London, all amounts received to their credit. Cooper knew nothing of this request, and relied upon strict compliance with his directions. On the day that the deposit was made with the Bank of Scotland, Martin, Turner & Co were advised both by wire and by letter thereof, and wrote approving such action. On the 28th or 29th of February, Martin, Turner & Co. suspended, in consequence of advices received from India, and the Bank of Scotland appropriated the funds in its possession to the payment of their overdrawn account; so this cabled amount was not applied to the taking up of Cooper's draft, and he was thereafter compelled to pay it. If the money had been sent by mail from London to Glasgow, as directed, the draft would have reached the latter place on the morning of the 28th, and would, as shown by the testimony of some of the members of the firm of Martin, Turner & Co., have been appropriated, as other like drafts then received, to the special purpose for which the transmission was made. In brief, the neglect of the defendant to follow the specific instructions of the plaintiff in regard to the transmission prevented the appropriation of the amount transmitted to the payment of plaintiff's draft, and secured its appropriation to an obligation of Martin, Turner & Co. to the Bank of Scotland. It is true that this disregard of instructions was owing to a special request theretofore made by the payee of the draft; but such special request does not disturb the fact that the instructions of the plaintiff were disregarded, and that he suffered loss in consequence therefrom. It would seem from this general statement that the liability of the defendant could not be doubted. It had no contract with the payee of the draft; its contract obligations were with the sender of the money; and it is the general laws of agency that disregard of the explicit instructions of the principal casts upon the agent liability for any loss resulting therefrom. After the testimony was closed, counsel for the defendant moved to strike from the case all parol evidence tending to affect the legal construction of the bill heretofore quoted, which motion was overruled. The contention now is that that bill stated the contract with all its terms, and, being in writing, could not be varied or...