City of New Port Richey v. Fidelity & Deposit Co.

• Decision Date: 11 July 1939
• Docket Number: No. 9124.,9124.
• Citation: 123 ALR 1352,105 F.2d 348
• Parties: CITY OF NEW PORT RICHEY v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: U.S. Court of Appeals — Fifth Circuit

123 ALR 1352, 105 F.2d 348 (1939)

CITY OF NEW PORT RICHEY v. FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 9124.

Circuit Court of Appeals, Fifth Circuit.

July 11, 1939.

Fred T. Saussy, of St. Petersburg, Fla., and W. H. Brewton, of Dade City, Fla., for appellant.

T. M. Shackleford, Jr., of Tampa, Fla., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The City of New Port Richey, having authority of law so to do, on June 1, 1930, signed by its officers and its corporate seal twenty-six bonds payable to bearer for $1,000 each with interest at 6% payable semi-annually June 1 and December 1 on presentation and surrender of annexed interest coupons, the bonds reciting they were issued to retire other legal bonded indebtedness. The bonds were duly validated, but they were never issued or agreed to be issued to anyone, but were deposited for safe-keeping in a lock box of the city in the vault of a bank. Bank robbers drilled into the vault and stole the bonds. On October 24, 1935, thirteen of them were acquired, with all coupons attached, by Suwanee Life Insurance Company, and sold by it to Pierce-Biese Corporation, a bond dealer, who sold them to F. M. Blount, Inc. These are each alleged to have taken the bonds in due course for value and without notice of any infirmity in the title. Pierce-Biese Corporation reacquired the bonds and attempted to resell them, but it was discovered that the city claimed they were stolen. Pierce-Biese Corporation (now named Clyde C. Pierce Corp.) had a policy of insurance against loss by stolen bonds, issued by Fidelity & Deposit Company of Maryland, and the latter, having indemnified its insured, acquired the bonds. The City of New Port Richey is now engaged in refunding its indebtedness and will not recognize these bonds. They cannot be sued on for they are not due till 1950. A declaratory judgment affirming the validity of bonds and coupons as obligations of the City was sought and on stipulated facts obtained. The City appeals.

The main questions presented are: Were the bonds ever negotiable instruments, since they had never been delivered? Were they negotiated to a holder in due course so as to prevent enquiry thereabout? What effect had the presence of ten overdue coupons attached to each bond?

The Uniform Negotiable Instruments Law was enacted in Florida in 1897. Comp.Gen.Laws 1927, § 6760 and ff. Its purpose was to establish uniform rules in the States adopting it, with acceptance of its solutions where differences had previously existed. It ought to be construed according to the meaning of its words, not bending its provisions to the former decisions. Where it makes no provision, the former law of course stands. And decisions in a State's courts since its enactment there are controlling in the federal courts as authoritative interpretations of a State statute.

It has been suggested that public bonds differ from ordinary negotiable instruments; but such bonds, as the promissory notes of a municipality, are held in Florida to be negotiable instruments under the Act. City of Jacksonville v. Renfroe, 102 Fla. 512, 136 So. 254; State ex rel. Havana State Bank v. Rodes, 115 Fla. 259, 151 So. 289, 155 So. 852. See also 7 Am. Jur., Bills and Notes, §§ 204, 215. As between the immediate parties and all others not holders in due course, delivery is essential to the existence of the instrument as a legal obligation. Until put in operation by delivery, the original instrument and indorsements of it are, as to such parties, incomplete and revocable, and a delivery may be shown to have been conditional or for a special purpose. The Act so declares, section 6776. It adds: "But where the instrument is in the hands of a holder in due course a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed." This is a separate sentence, intended we think to govern all cases in which a negotiable paper complete on its face comes to the hands of a holder in due course; and it is not to be confined to cases where a delivery of some sort was made, but is sought to be shown to have been conditional or for a specific purpose. The following sentence: "And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved," in like manner gives the rule where the holder is not one in due course, and establishes in his favor a prima facie but not conclusive presumption of valid delivery. If these two provisions should be restricted to cases of conditional or limited deliveries as appellant contends, leaving uncovered all cases of fraudulent negotiation where there had been no delivery, the negotiability of commercial paper would be greatly hindered, since in every case one would need to enquire about delivery by the maker and by each indorser before he could be safe. We think the clear, natural meaning of the provisions of section 6776 is that they include all questions touching delivery. One who fully completes a negotiable paper, withholding delivery, assumes the risk of its getting out of his possession into the hands of a holder in due course. He must care for it much as he would his paper money. Compare Cooke v. United States, 91 U.S. 389, 23 L.Ed. 237. We do not regard as important the conflicting decisions made prior to the Negotiable Instruments Law touching liability on instruments stolen before delivery (see 8 Am.Jur., Bills and Notes, § 620 and cases cited), nor are we willing to follow the interpretation of the English statute, which applies only to a "contract on a bill" and is differently paragraphed, made in McKenty v. Vanhorenback, 21 Manitoba Rep. 360. Cases decided under the Negotiable Instruments Law tending to support our conclusion are collected in Angus v. Downs, 85 Wash. 75, 147 P. 630, L.R.A.1915E, 351, and note in L.R.A.1915E, 355. See also Rainier v. LaRue, 83 Ind.App. 28, 147 N.E. 312; Massachusetts Nat. Bank v. Snow, 187 Mass. 159, 72 N.E. 959; Ensign v. Forrest, 251 Mass. 296, 146 N.E. 655; Gruntal v. United States F. & G. Co., 254 N.Y. 468, 173 N.E. 682, 73 A.L.R. 1337.

The appellant contends that section 6776 so construed takes its property without due process of law contrary to the Fourteenth Amendment, U.S.C.A.Const., and the Declaration of Rights of the Florida Constitution (section 12), and invades the province of the judiciary in that an irrational conclusive presumption is created without a logical basis. Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191; Manley v. Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; Hawes v. Georgia, 258 U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431, are cited. We recognize that the legislature cannot make certain facts conclusive proof of another ultimate fact when there is no logical connection or probability in experience to connect them. But the real legislative intent may not be to make a rule of evidence, but a rule of substantive law, and if the legislature may constitutionally do the latter, the form of words used will not defeat the intent. Statutes often say that certain acts "shall be deemed," or "shall be held to be," or "shall be conclusively presumed to be" something else which is enjoined or forbidden, when the real purpose and effect is to enjoin or forbid those acts, and not to stultify the courts into really "deeming" or "presuming" one thing to be another. We regard the language of section 6776 to be of this sort. Its meaning as a whole is that ordinarily a physical delivery of a negotiable instrument is required to put it in force, and that when it is found complete on its face in the hands of one not its maker it is to be regarded as delivered unless the contrary is shown, but that in the hands of a holder in due course no enquiry is to be made into delivery, but the right of the holder is to be held indefeasible by a want of delivery. This is a regulation of the consequences of fully executing such a paper and by any means suffering it to come into the hands of a holder in due course, a regulation which a legislature may prospectively make. It is not capricious or arbitrary, but a reasonable fixing of the rights of the parties. Notwithstanding the form of words used, it is not a stultification of the courts, but a direction to them to forbear enquiry into the fact of delivery when it appears the completed instrument has come to a holder in due course.

The case then turns on whether a holder in due course is here involved. Fidelity and Deposit Company is not such, for it took the bonds after full knowledge of the defense to them. But it acquired the rights of any former holder in due course, for such rights are transmitted and not destroyed by a transfer after notice to a third party. Cromwell v. Sac County, 96 U.S. 51, 24 L.Ed. 681. The petition alleged Suwanee Life Ins. Co., Pierce-Biese Corporation, and F. M. Blount, Inc., each to be a holder in due course. The answer categorically denied each was such. On that issue it was stipulated as to each that it in October, 1935 (presumably in Florida), "in the ordinary course of business, without knowledge or notice of any illegality thereof or any infirmity in the title thereto, for value" bought the bonds. It was also stipulated that at each transfer all the coupons, ten on each bond being past due, were annexed to the bonds. The judge did not find as a fact that any purchaser was a holder in due course, but he found the above to be the facts, and concluded as a matter of law that the bonds and all coupons were valid and...