Bank v. Wetzel.

• Decision Date: 25 April 1905
• Court: West Virginia Supreme Court
• Parties: Bank v. Wetzel.

58 W.Va. 1

Bank

v.Wetzel.

Supreme Court of Appeals of West Virginia.

Submitted March 30, 1905.

Decided April 25, 1905.

1. Bill of Exceptions Order to be Entered by Clerk, and Not theBillPractice.

When a judge in vacation makes an order under section 9, chap131, Code, 1899, showing that he has executed a bill of exceptions, and so certifies it to the clerk, the clerk must record the order in the law order book and attest it; but it is not necessary that the bill, or any part of it, be literally recorded in said book. (P-3.)

2. Bill of Exception Part of Record by Identification per se.

If a bill of exceptions, though bearing no letter, number or other mark of identity, do of itself by its own matter and character identify itself as the bill mentioned in the order of court or the judge certifying its execution, the bill is part of the record, (p. 3.)

3. Negotiable Notes Acts of Cashier of Bank Beyond His Powers Does Not Release Surety on Note.

A cashier of a bank has no implied power, merely by virtue of his office, to receive money for interest in advance on a note owned by the bank and agree to extend time of payment and thus discharge an endorser from liability, (p. 5 & 8.)

4. Negotiable Notes Notice of Protest to Decedent, Received by Admr., Good.

A notarial notice of protest of non-payment of a note addressed to an endorser as if living, when the endorser is dead, if actually received by his administrator, is good to charge such endorser's estate, (p. 3.)

5. Negotiable Notes Protest and Notice When Evidence of Required Practice.

To require proof of protest and notice of non-payment when the same are averred in a declaration, they must be put in issue by a plea such as will call for such proof, (p. 4.)

Error to Circuit Court, Jackson County.

Action by the Bank of Ravenswood against Flora Wetzel, administratrix of C. C. Smith. Judgment for defendant, and plaintiff brings error.

Reversed

C. E. Hogg, for plaintiff, in error.

J. M. Harper, Starkey & Parsons, and Walter Pendleton, for defendent in error.

Brannon, Judge:

R. T. Wetzel made a promissory note for $1,250.00 payable to B. D. Williams at the Bank of Ravenswood, which was endorsed by Williams and next by C. C. Smith. The bank brought debt against Flora Wetzel, administratrix c. t. a. of Smith. The administratrix filed two pleas in confession and avoidance, in effect averring-that Smith was an accommodation endorser for Williams, and that the bank, in consideration of $34.15 paid as advance interest by Wetzel, after maturity of the note, agreed to give Wetzel four months further time for payment, without the knowledge or consent of Smith or his personal representative, and thereby released him from liability on the note. The plaintiff replied generally to the pleas. The case was tried by the court in place of a jury, and the court found and gave judgment for the defendant, and the bank brought the case to this Court by a writ of error. Smith died before the maturity of the note.

Counsel for defendant says that the bill of exceptions is not part of the record, as the paper appearing in the printed record purporting to be a bill of exceptions has no ear-mark by letter, number or otherwise to identify it. The paper begins with the title of the case, and offers itself as a bill of exceptions by the usual opening, ''Be it remembered that upon the trial of the above entitled cause," certain evidence was given, giving that evidence in full and in all respects showing that such evidence belongs to the case, and the evidence itself showing-that it belongs to the case. The bill is signed by the judge, his certificate stating that it is all the evidence given in the case, and his order under the caption of the case certifies the bill to the clerk, with direction to him to enter that order in the law order book, and it is certified by the clerk as of record. It is true that no number or letter identifies the bill; but it ear-marks itself as belonging to the case. True, McKendree v. Shelton, 51W. Va. 516, requires a paper made part of a bill of exceptions to be in some way marked for identity; but if its character is given with sufficient certainty to safely identify it, as in this case, it is enough. If a bill of exceptions should say that a deed from A to B conveying one hundred acres of land, or elated on a certain date, that would identify that deed, without mark or letter. Is it meant by counsel that the bill, being made in vacation under Code 1899, chapter 131, section 9, must be spread in its every word on the order book? Wells v. Smith, 49 W. Va. 78, and Craft v. Mann, 46 Id. 478, in saying that bills of exception certified to a clerk must be entered upon the order book, do not mean that they shall be in every word spread on the order book. The words of the statute are those used in those cases; but it was never meant to require almost the impossible, to fill order books, at the expense of great prolixity and costs, by requiring literal entry. It is simply intended that the judge's order shall be recorded to show that a bill of exceptions was made, just as an order made in term so certifies. It is not required to be more definite in the one case than in the other. If the order is of record, and you can identify the bill by it, it is enough. The public officer, the clerk, preserves and under his oath copies the right paper in the appeal record. The order made in term does not spread the bill at large on the record. It simply notes that a bill was executed in the particular case, and orders it to be considered a part of the record. It only certifies it as having been made, and if the paper identifies itself as a bill of the case, it is good.

The defense makes the point that there was no sufficient valid notice of protest, because the notary who gave it was a stockholder, and because it was addressed to Smith as if living when he was dead. I do not see that the matter of in- terest would invalidate the protest. The statute excluding the evidence of a witness against a dead party does not apply. As to interest, the holder himself may give notice. If it be said that his protest could not be read as evidence, that is immaterial, owing to the fact that Mrs. Wetzel swears as a witness that she received that notice. And that fact dispenses with further discussion of this matter. A further answer to this point is that there was no plea putting that matter in issue, nil debet. Williams v. Bartlett, 72 Term. 620. Now, the claim is that the notice should have been addressed to the administratrix. What is the object of notice? To give notice to the party if living, or his personal representative, if dead, of the non-payment of the note. Personal notice does this. Written notice also. Just so the proper party get notice, that suffices, as the sole and only purpose of notice is accomplished, that is, a warning of non-payment. To require more than this would he without reason and deny justice on barren technicality. Moore v. Moore, 22 La. Ann. 227; 2 Rob. (new) Prac. 207; Beale v. Peck, 12 Barb. 245; Drexler v. McGlynn, 99 California 143; Smalley v. Wright, 11 Vroom 471, 2 Daniel, Neg. Instr. section 1000.

As to further indulgence: The evidence conflicts as to whether the payment of $34.15 was made as a partial payment only, or as interest in advance for extension of time of payment. My conclusion is that as the burden of proof here is on the defendant, she has not sustained the point that further time was given. I think the oral evidence, and the record in the two books of the bank, show that the said $34.15 was simply a partial payment. If this is so, there is nothing in this defense for want of evidence; and if this is not so, still that defense must fail for want of law to sustain it. Concede that there was an agreement by the cashier to receive the $34.15 and grant indulgence. The cashier had no implied authority to do this. No express authority is proven; no ratification by the bank of this loose, unwarranted act is proven. Counsel cites 2 Am. & Eng. Ency. L. (1 Ed.) reading: "The cashier is the chief executive officer through whom the whole financial operations of the bank are conducted. His acts within the scope of the general usage, practice and course of business of the bank will bind the bank in favor of a third person possessing no other knowledge." A cashier has very wide powers. The Supreme Court says in U. 8. v. City Bank, 21 How. 356. "The court defines the cashier of the bank to be an executive officer by whom its debts are received and paid, and its securities taken and transferred, and that his acts, to be binding upon a bank, must be done within the ordinary course of his duties. His ordinary duties are to keep all the funds of the bank, its notes, bills and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He usually receives, directly or through subordinate officers, all moneys and notes of the bank, delivers up all discounted notes and securities when they have been paid, draws checks to withdraw the funds of the bank where they have been deposited, and as the executive officer of the bank, transacts most of its business." 4 Thompson on Corporations section 4741. He has full power within the just scope of his authority, according to the general usage, practice and course of business in such case. Cook on Corp. section 718; Clark & Marshall, Corp., section 705. But there is at least one notable, logical, necessary exception, essential to protect stockholders against loss and wreck of the bank; to protect them against what is quite common, the loose practice and unwarranted assumption of power by cashiers. A cashier has no implied power, merely by virtue of his office, to give away, surrender or release the bank's securities. He can do no act which so operates. When he does this he is outside the scope of his authority, is acting not according to usage, practice or usual course of business,...