First Nat Bank of Xenia, Ohio v. Stewart

• Citation: 114 U.S. 224,5 S.Ct. 845,29 L.Ed. 101
• Parties: FIRST NAT. BANK OF XENIA, OHIO, v. STEWART and another, Adm'rs, etc
• Decision Date: 30 March 1885
• Court: United States Supreme Court

114 U.S. 224

5 S.Ct. 845

29 L.Ed. 101

FIRST NAT. BANK OF XENIA, OHIO, v. STEWART and another, Adm'rs, etc.

March 30, 1885.

John Little, for plaintiff in error.

E. M. Johnson, Geo. Hoadly, and Edward Colston, for defendants in error.

WOODS, J.

The only issue in the case was found by the jury for the defendants in error. The judgment should, therefore, be affirmed, unless the court, in the progress of the trial, committed some error to the prejudice of the plaintiff in error. This the latter insists was done.

The first assignment of error relates to the admission in evidence of certain declarations of F. H. McClure, the cashier of the plaintiff in error.

The bill of exceptions states that on the trial the defendants in error offered testimony tending to show that the intestate, Daniel McMillan, was, on April 14, 1876, the owner of 30 shares of the capital stock of the bank standing in his name upon its books, represented by two certificates,—one for 20 and the other for 10 shares; that on the day just mentioned he made his note for the payment, six months after date, to the order of F. A. McClure, of $2,600; that he attached the certificate for 20 shares to this note as security for its payment, and through the medium of the payee, McClure, who was the cashier of the plaintiff in error, the note was discounted by one James K. Hyde; and that the remaining 10 shares were deposited with the plaintiff in error, and held by it for safe-keeping, and not for any other purpose; that on Monday morning, October 23, 1876, McMillan died, and that on the afternoon of that day, McClure, the cashier, having heard of the death of McMillan, sold his 30 shares of stock to E. H. Munger for $4,200, and credited that amount to McMillan on the books of the bank.

The bill of exceptions further stated that the defendants in error introduced evidence tending to show that a few days prior to his death McMillan had paid to the bank the amount due on his note held by Hyde, who had deposited the note with the bank for collection, and that two days after McMillan's death, Hyde, after notice by McClure of the payment of the note, received from the bank its certificate of deposit for the amount due thereon, and the note, with the certificate of stock pledged for its payment, was surrendered by Hyde to the bank, which thus obtained possession of the certificate. Thereupon the defendants in error offered in evidence the following questions and answers contained in the deposition of Hyde: 'Question. What conversation did you have with McClure subsequent to this (subsequent to leaving said note for collection) with reference to that certificate? [20 shares.] Answer. He told me he had full power to transfer it at any time on the books and apply it to the payment of the note. Q. What was said to you by McClure at the time of the payment of the note, in reference to this certificate of 20 shares? A. I desired to purchase it, but there was an understand- ing that I should hold the certificate of deposit until an administrator was appointed, when an arrangement might be made for its purchase. * * * Q. What statement did McClure make to you at the time of the payment of the note, as to who was making payment? A. He said the payment was made from money which was sent there by McMillan. He told me the money was left there the Wednesday previous. Q. Was any statement made to you by McClure, with reference to this certificate of stock after McMillan's death, in reference to Mrs. McMillan; if so, what? A. He told me after McMillan's death that she preferred to keep the stock. * * * Q. How long after the talk on Wednesday after McMillan's death till the other talk in which McClure told you Mrs. McMillan wished to keep the stock? A. Two months, I presume. Q. Where did the latter take place? A. In the bank; they all took place there.'

The ruling of the court in allowing these questions and answers to be read to the jury, notwithstanding the objection of the plaintiff in error, is now assigned for error. Its contention is that it furnished the money to pay McMillan's note for $2,600, held by Hyde, for which the certificate for 20 shares was pledged, and that it thereby, on the delivery of the certificate to it by Hyde, became entitled to the possession thereof as security for the note. The defendants in error insist that the money to take up the note held by Hyde was paid by their intestate, McMillan. The plaintiff in error complains that upon this issue the statements of McClure, its cashier, made several days after the alleged payment of the note by McMillan, were admitted to show such payment, and insists that this was error, on the ground that the declarations of an agent concerning a past transaction cannot be given in evidence to bind this principal.

The rule upon this subject has been thus laid down by this court: 'Whatever an agent does or says, in reference to the business in which he is at the time employed and within the scope of his authority, is done or said by the principal, and may be proved as if the evidence applied personally to the principal.' American Fur Co. v. U. S. 2 Pet. 358. It is because the declaration of an agent is a verbal act and part of the res gestae that it is admissible, and whenever what he did is admitted in evidence, then it is competent to prove what he said about the act while he was doing it. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 336; Cliquot's Champagne, 3 Wall. 114; Cooley v. Norton, 4 Cush. 93; Hannay v. Stewart, 6 Watts, 487; Garth v. Howard, 8 Bing. 451.

Applying these principles, we think the testimony objected to was properly admitted. The declarations of McClure were made, so the record states, at the time that he paid Hyde the amount of the note. They were, therefore, clearly a part of the transaction; for Hyde, being the holder of the certificate of stock as collateral security for the note, was entitled to know by whom the payment of the note was made, so as to decide whether to return the certificate to McMillan or turn it over to the bank, or, if it was left with the bank, in what capacity the bank took it, whether for its own security or as agent for McMillan. The declarations of McClure were made to Hyde in explanation of the payment of the money to him, and was therefore admissible as a part of the act of payment. The declarations of McClure, in reference to the purchase by Hyde of the 20 shares of stock, were made at the same time, and as they were offered as tending to show by whom the money to pay the McMillan note was furnished, they were also a part of the transaction, and on that ground admissible.

The plaintiff in error contends that a conversation which took place two months after the payment of the note, between McClure and Hyde, in reference to the purchase by the latter of the 20 shares of stock, was wrongly received in evidence. But it plainly appears from the record that this second conversation was part of a treaty between McClure and Hyde, commenced on the Wednesday after McMillan's death, when the McMillan note was paid for by the purchase of the 20 shares of stock by Hyde. It was offered to show by the declarations of its cashier that the bank did not, when the declarations were made, claim any general or special property in the stock, but in effect admitted it to be the property of the estate of McMillan. The declarations made by an officer or agent of a corporation, in response to timely inquiries, properly addressed to him and relating to matters under his charge, in respect to which he is authorized in the usual course of business to give information, may be given in evidence against the corporation. Bank of Monroe v. Field, 2 Hill, 445; McGenness v. Adriatic Mills, 116 Mass. 177; Morse v. Connecticut River R. Co. 6 Gray, 450; Abb. Tr. Ev. 44.

As cashier, McClure had charge of all the money, securities, and valuable papers of the bank. Wild v. Bank of Passamaquoddy, 3 Mason, 505; ...