Cardozo v. Fawcett
| Decision Date | 18 January 1924 |
| Docket Number | No. 23727.,23727. |
| Citation | 158 Minn. 57,196 N.W. 809 |
| Parties | CARDOZO v. FAWCETT. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; J. C. Michael, Judge.
Action by P. N. Cardozo against W. H. Fawcett. From an order denying a motion for a new trial, defendant appeals. Affirmed.
County warrants drawn on a special fund and indorsed by the treasurer, ‘Not paid for want of funds,’ are not negotiable instruments.
Where such warrants, indorsed in blank by the payee, are sold to a person who thereafter places them in the hands of an agent for collection, and such agent, instead of collecting them, wrongfully sells them to a good-faith purchaser, the owner may recover them from such purchaser.
Although the indorsement of the payee made them transferable by delivery, merely intrusting them to an agent for collection is not such conduct on the part of the owner as will estop him from reclaiming them from a purchaser from such agent. L. O. Rue and Chas. F. Kelly, both of Minneapolis, for appellant.
Ambrose Tighe and O. H. O'Neill, both of St. Paul, for respondent.
Action in replevin to recover possession of two auditor's warrants drawn by the auditor of Cass county on the treasurer of that county-one for the sum of $1,000, the other for the sum of $2,000. The warrants were issued October 19, 1921, and directed the treasurer to pay the amounts thereof to the order of L. & L. Construction Company and charge to a designated special road fund, ‘If there is money in the treasury for that purpose.’ A clause inserted in the warrants indicated that the claim had seen assigned to the Citizens' State Bank of Kelliher. On October 21, 1921, the treasurer indorsed upon the warrants, ‘Presented for payment and not paid for want of funds.’ Shortly thereafter they were indorsed in blank, without recourse, by the bank and by the Construction Company, and became the property of Stevens & Co., a corporation engaged in the business of buying and selling securities. In November, 1921, Stevens & Co. sold and delivered them to plaintiff, who took them without any other or further indorsement than above stated. On February 18, 1922, Stevens & Co. wrote plaintiff that the warrants had been called for payment and offered to collect them for him from the county. Plaintiff, through his broker, sent the warrants to Stevens & Co. with instructions to send them to the county for payment and remit the proceeds to him. On February 23, 1922, Stevens & Co. sold the warrants to defendant, who purchased them for full value believing that Stevens & Co. owned them. On the same day Stevens & Co. sent plaintiff their check for the amount of the warrants which plaintiff deposited for credit to his account. A few days later the check was returned by the bank on which it was drawn unpaid for want of funds. Shortly thereafter Stevens & Co. was adjudged a bankrupt. Plaintiff filed a claim for the amount of the check in the bankruptcy proceedings. Learning thereafter that the warrants had not been called for payment by the county, and that Stevens & Co. had not sent them to the county officials nor collected them, but had sold them to defendant, plaintiff demanded the warrants from defendant and brought this action to recover possession of them. The court directed the jury to determine whether plaintiff had delivered the warrants to Stevens 3 Co. solely for the purpose of collection, whether he was negligent in delivering them to Stevens & Co., indorsed as above stated and with no other indorsements thereon, and whether by his conduct he had ratified the sale made by Stevens & Co. to defendant. The jury returned a general verdict for plaintiff and defendant appealed from an order denying a new trial.
The evidence amply supports and perhaps required the findings that plaintiff delivered the warrants to Stevens & Co. solely for the purpose of collection, that he was free from negligence in the matter, and that he had not ratified the acts of Stevens & Co. after knowledge thereof.
Defendant contends that plaintiff is estopped from asserting title to the warrants as against him; and invokes the doctrine that where one of two innocent parties must suffer a loss through the fraud of a third, such loss is to be borne by the one whose acts enabled the wrongdoer to commit the fraud. Although this rule is usually stated in general terms, it is usually held to be applicable only in those cases in which some fault or negligence is imputable to the party against whom it is invoked, and we think the facts do not bring the present case within it.
[2] Plaintiff was the absolute owner of the warrants. If is the general rule that the owner may pursue and reclaim his property wheresoever he may find it and in whosesoever hands it may be; but there are several exceptions to this rule. It does not apply to commercial paper negotiable under the law merchant. The warrants in question are not...
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