First Nat. Bank v. Felker

Decision Date18 February 1911
Citation185 F. 678
PartiesFIRST NAT. BANK OF CINCINNATI v. FELKER.
CourtU.S. District Court — Western District of Arkansas

[Copyrighted Material Omitted]

Rose Hemingway, Cantrell & Loughborough, for plaintiff.

Read &amp McDonough, for defendant.

ROGERS District Judge (after stating the facts as above).

At the time plaintiff purchased the several drafts and bills of lading, it was undeniably true that the drafts and the cans covered by the bills of lading were the absolute property of the United States Can Company. That company could have shipped them anywhere and sold them on any terms and to anybody it saw fit, and neither the Rogers Canning Company, nor any one else, had any legal right to complain. When the plaintiff purchased from the United States Can Company the drafts and bills of lading, it is undeniably true that it acquired all the title, coupled with all the powers of jus disponendi which its assignor, the United States Can Company possessed before the latter parted with its title. The plaintiff, therefore, might have diverted and sold the cans to whom it pleased, and the Rogers Canning Company in that event would have had no legal right to complain. Dows et al. v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214, where the whole subject of the effect of assigning the drafts with bills of lading attached is fully and ably discussed.

The plaintiff, however, forwarded to defendant the drafts and bills of lading for collection. In doing so it forbade him delivering the drafts and bills of lading, which in law is the equivalent of forbidding him to deliver the cans covered thereby, until the drafts were paid. The instructions clearly reserved in the plaintiff the title and the jus disponendi of the cans covered by the bills of lading. 2 Daniel on Negotiable Instruments, par. 1734b. The defendant bank was the agent of plaintiff for a specific purpose, and that only. That agency was to hold the cans until the drafts were paid, then deliver the cans to the Rogers Canning Company, and remit the proceeds to plaintiff. If at this juncture on presentation by the defendant the Rogers Canning Company had declined to pay the drafts, the plaintiff had the right to do what it pleased with its cans. Indeed, it had that right with or without ever presenting the drafts for payment at all. 2 Daniel on Negotiable Instruments, par. 1734b; 91 U.S., 23 L.Ed., supra. There was therefore no contractual relation between plaintiff and the Rogers Canning Company, or, if any, it gave the Rogers Canning Company no right to the title or possession of the cans without first paying the drafts, and no right to, in any way, control their disposition. Id. par. 1734c. Up to this juncture plaintiff had in no way given any warranty of the character of the goods in question to the Rogers Canning Company, because the Rogers Canning Company had not purchased the cans. They were not its property. Id. Whatever warranty as to the character of the goods may have been entered into by the United States Can Company with the Rogers Canning Company, that warranty could have no effect whatever as to the United States Can Company until the Rogers Canning Company has acquired title to the goods; a fortiori, it could have no effect as to he plaintiff. Plaintiff had incurred no new obligations to the Rogers Canning Company by simply purchasing the drafts and the bills of lading.

Such was the status of the parties when the defendant in violation of the positive instructions of his principal, the plaintiff, delivered the cans to the Rogers Canning Company, and kept the plaintiff in ignorance of its illegal and unauthorized act until the Rogers Canning Company had used the cans in its business, and the plaintiff was thereby deprived of the power to sue and recover the cans. This was clearly an act of conversion by both the defendant and the Rogers Canning Company. Dows et al. v. National Bank of Exchange, 91 U.S. 637, 23 L.Ed. 214. In Hobbs et al. v. Chicago Packing & Provision Co., 98 Ga. 576, 25 S.E. 584, 58 Am.St.Rep. 320, Lumpkin, J., said:

'A wrong delivery of goods either negligently or willfully made by one intrusted with the custody of them is in law a conversion. ' Gregg v. Bank of Columbia, 72 S.C. 458, 52 S.E. 195, 110 Am.St.Rep. 633.

It requires no authority to support the principle that plaintiff might have ratified the tortious act of its agent in delivering the cans without first having received payment of the drafts and sued the Rogers Canning Company for the purchase price of the cans, or it might have sued it in trover for their conversion, or, if the goods could have been found, maintained replevin therefor.

What the measure of damages is in such cases is of no importance as the plaintiff elected to pursue neither remedy. What defense the Rogers Canning Company in either of such events might have urged is unimportant also, for the question is not presented. On the contrary, plaintiff elected to treat the action of its faithless agent as a conversion of its cans, and look to him for redress for its injury. It needs no authority to sustain plaintiff's right to recover in this action. 91 U.S. 637, 23 L.Ed. 214, supra. Indeed, I do not understand the right of recovery as against the defendant is in dispute. Felker had no interest in the goods, and neither plaintiff nor the United States Can Company owed him anything. He sets up no such defense. His relation to the plaintiff was solely that of an agent. After he had converted the cans to his own use by delivering them in violation of the positive instruction of his principal, and subsequently by concealing that fact deprived the plaintiff of the right to pursue and recover the cans, and still later collected from the Rogers Canning Company the...

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7 cases
  • Boise Development Co., Ltd. v. Boise City
    • United States
    • Idaho Supreme Court
    • 28 Septiembre 1917
    ... ... Western Ry. of ... Alabama, 8 Ga.App. 787, 70 S.E. 208; First Nat. Bank ... v. Felker, 185 F. 678; Manning v. Galland-Henning ... ...
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    ... ... in Blank, Was Sent to Bank with Invoice and Sight Draft ... Attached, as Showing Merely Right to ... read: "Sold to Perley R. Eaton," etc., to the ... first-mentioned bank. That bank indorsed the draft, "Pay ... to the order of ... Mass. 373, 92 N.E. 494; First National Bank of ... Cincinnati v. Felker (C. C.), 185 F. 678 (aff ... 196 F. 200); Paxson Bros. v. Warfield, 6 ... ...
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    ...et al. v. Page et al, 8 Gray (Mass.) 281; Brown v. Floersheim Mercantile Co, 206 Mass. 373, 92 N. E. 494; First National Bank of Cincinnati v. Felker (C. C.) 185 F. 678, affirmed (C. C. A.) 196 F. 200; Paxson Bros. v. Warfield, 6 Ga. App. 315, 65 S. E. 34; 10 C. J. pages 192 and 201; 4 R. C......
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    ...1960, until the date of judgment, at 6%, $5,965.47. 2 See 47 C.J.S. Interest § 19, subd. b, p. 30; Anno. 96 A.L.R. 18, 74; First Nat. Bank v. Felker, 185 F. 678, aff'd (C.A. 8) 196 F. 200; Felder v. Reeth, (C.A. 9) 34 F.2d 744, 97 A.L.R. 244; New York Alaska Gold Dredging Co. v. Walbridge, ......
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