Dana v. National Bank of Republic

• Decision Date: 05 January 1882
• Citation: 132 Mass. 156
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Thomas Dana & others v. National Bank of the Republic

132 Mass. 156

Thomas Dana & others v. National Bank of the Republic

Supreme Court of Massachusetts

January 5, 1882

Argued November 14, 1881

Suffolk. Contract for money had and received, to recover the amount of a check drawn by the plaintiffs on the defendant payable to the order of the Revere Sugar Refinery, and paid by the defendant without the order of the payee. At the trial in the Superior Court, before Putnam, J., the jury found for the plaintiffs, and the defendant alleged exceptions, which appear in the opinion.

Exceptions sustained.

H. D Hyde & J. Fox, for the defendant.

E. O. Shepard, for the plaintiffs.

Allen J., Morton, J., absent. Field, J., did not sit.

OPINION

Allen J.

The defendant received moneys from the plaintiffs under an agreement to pay on demand as called for by the plaintiffs' checks. The plaintiffs drew a check payable to the order of the Revere Sugar Refinery, which was subsequently fraudulently altered, by erasing the name of the payee, so as to be payable to bearer, and the defendant paid the money upon it to Piper, the plaintiffs' clerk, who was the fraudulent bearer. This was no payment to the plaintiffs, and they can recover the money, unless the defendant shows that the plaintiffs had given them reason to believe that Piper was authorized to receive the payment, or unless the plaintiffs have by their subsequent conduct so far ratified the payment as to be bound by it. It is upon the latter point only that exceptions are before us to the refusal to give instructions, and to instructions given.

By the course of dealing between the parties, the defendant kept the account of all moneys received and paid out on checks, and on the first of each month made a detailed statement of all deposits and payments during the preceding month, and delivered it, with the checks and deposit book, to the plaintiffs. The payment in question was made on November 20, 1874, and on the first of the next month the statement with the book and checks, including the check in question, was delivered to the plaintiffs. On January 1, another like monthly statement was made, and during that month the plaintiffs by check drew out their entire balance, and the account was closed. The plaintiffs made no objection to this item of the account until October 1876.

The instruction asked for by the defendant, to the effect that, if the plaintiffs did not, after a reasonable opportunity to examine the checks, object to the payment of the check in question, they would be presumed to have ratified and adopted it, was rightly refused. Whatever effect those facts might have as evidence, it is clear that they would raise no presumption of law that the plaintiffs ratified and adopted the payment and check.

But the instructions given are open to objection. They were to the effect, and the jury must have understood from them, that, unless the plaintiffs had actual personal knowledge of the mistake in the monthly statements, all evidence in reference to them was to be disregarded; and, as it was not contended that there was any evidence of such knowledge, the effect was that there was no evidence of ratification left to the jury. We think that the evidence in respect to the monthly statements, and other evidence bearing upon them, should have been submitted to the jury upon the question of implied ratification of the payment to Piper.

Whether the rule given to the jury properly applies to a mistake in the statement of an account only, which is for the advantage of the party making it, and by which his condition is not changed, it is not necessary to consider. When the error in an account is not a mere mistake in statement, but is the statement of a mistake of fact, -- of some act of a party which is not for his advantage, and by which his condition is changed, -- a different rule will apply. The instructions do not refer to any negligence of the defendant. They assume the case of a check signed by the plaintiffs and apparently genuine, taken in good faith by mistake. The mistake was in the payment of the money upon an altered check, believed to be genuine; it was not for the advantage of the defendant and its condition was changed by it. It was in the course of dealings between the parties in relation to which each owed duties to the other. The facts concerning the monthly statements are facts in the dealings between the parties in...