First Nat. Bank v. Nelson

• Decision Date: 18 December 1894
• Citation: 105 Ala. 180,16 So. 707
• Parties: FIRST NAT. BANK OF MONTGOMERY v. NELSON.
• Court: Alabama Supreme Court

16 So. 707

105 Ala. 180

FIRST NAT. BANK OF MONTGOMERY v. NELSON.

Supreme Court of Alabama

December 18, 1894

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by Margaret Nelson against the First National Bank of Montgomery for money received to plaintiff's use. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

The complaint contained two counts, which were as follows "The plaintiff claims of the defendant ten thousand ($10,000) dollars for money received by the defendant on viz., the 30th day of May, 1890, to the use of the plaintiff which said sum of money, with interest thereon, is still unpaid. The plaintiff claims of the defendant the further sum of ten thousand dollars which was received and collected by the defendant to the use of the plaintiff on, viz., May 30th 1890, on a certain bank check which was drawn on said day by Moses Bros. & Co. on the Merchants' & Planters' National Bank of Montgomery for the sum of, viz., five thousand dollars, payable to the plaintiff or bearer, which was the property of the plaintiff. Plaintiff avers that the defendant collected and received the amount of said check from said payer without the knowledge or consent of the plaintiff, and has failed and refused, and still fails and refuses, to pay the same, with interest thereon, to the plaintiff, and that said sum with interest thereon is unpaid." The defendant, by pleas, denied each and every allegation of the counts of the complaint. There is no dispute about the evidence in this case, the substance of which is sufficiently stated in the opinion.

Upon the cross-examination of Sam Marks, cashier of the Merchants' & Planters' National Bank, he testified that he had been engaged in the banking business for 11 years, and was acquainted with the custom and usage of banks in this state in respect to the payment of checks drawn payable to a designated person or bearer. Counsel for defendant then asked the witness the following question: "If it had not been the custom and usage of such banks during that time to pay all checks drawn payable to bearer, or to a designated person or bearer, to the person by whom the same was presented?" The plaintiff objected to this question, the court sustained the objection, and the defendant duly excepted. The court at the request of the plaintiff instructed the jury as follows: "If the jury believe the evidence, they will find for the plaintiff for her demand, with interest from the date of the check." The defendant duly excepted to the giving of this charge, and also excepted to the court's refusal to give the general affirmative charges requested by it. There was judgment for the plaintiff. The defendant appeals, and assigns as error the rulings of the court upon the evidence, the giving of the general affirmative charge for the plaintiff, and the refusal to give the general affirmative charge as requested by defendant.

Tompkins & Troy and Horace Stringfellow, for appellant.

Lester C. Smith and Brickell & Gunter, for appellee.

HARALSON J.

1. The main question for decision in this case, as stated by counsel for appellee, is: Whether the appellant is a bona fide holder of the check, the subject of this suit, having acquired, before maturity, the legal title for value, in the ordinary course of business? The action is clearly one in assumpsit. Wolffe v. State, 79 Ala. 202. The evidence is not conflicting. It shows that the check was drawn by Moses Bros. & Co. on the Merchants' & Planters' National Bank payable to the plaintiff below, appellee here,-Mrs. Margaret Nelson,-or bearer, and that the defendant received the money on it from the drawee, and appropriated it without the indorsement of the payee, and without her knowledge or consent. These facts having been established by the plaintiff, the burden was on defendant, which it assumed, to show its right to the check. Its contention is, that under the law, it passed by delivery, merely; and the defendant having thus acquired it before maturity, the law presumes it was obtained bona fide and on a valuable consideration, and its title will prevail over that of the plaintiff.

2. This brings us to consider whether this check is commercial paper in Alabama, and passed by delivery merely. It would serve no good purpose, perhaps, to trace the history of checks and assign them their place at common law and under statutory systems. Chitty in speaking of them says, that most of the rules applicable to bills of exchange, equally affect these instruments. Chit. Bills, 12, 511-547. Randolph defines a "check" to be, "a bill of exchange drawn on a banker, payable on demand." Rand. Com. Paper, § 8. The authorities and text-books, as a general thing, class them among commercial instruments. "All checks are bills, but all bills are not checks," is the sum of the conclusion of the authorities. Id., and authorities there cited; Morse, Banks, §§ 363; 393; 2 Daniel, Neg. Inst. § 583; Byles, Bills, 13; 1 Edw. Bills & N. § 19; 2 Pars. Bills & N. 57; Story, Prom. Notes, 487; 3 Am. & Eng. Enc. Law, 211, note 1. In Bank v. Crocheron, 5 Ala. 254, this court in defining the term, "notes and bills," as employed in a statute against the issuance of such instruments by a corporation, said, they were sufficiently comprehensive to include checks, drafts, bills single, bonds or tokens. In England and many of the states, a bill may be made payable to bearer, only, and then the title passes by delivery and is payable to whoever may be the holder. But we all know that it is within the legislative competency of each state, when not offending the provision of the federal constitution or that of the state, against the impairment of existing contracts, to regulate the nature, validity, interpretation and effect, of contracts which are to be entered into, or to be performed within its territory. Daniel, Neg. Inst. § 865. In this state, the whole system of commercial paper has been regulated by statute. In the Codes of 1852 and 1867, these statutes appear in the chapter headed, "Negotiable Instruments," and in the Codes of 1876 and 1886, in the chapter headed, "Choses in Action." There is no paper classed as mercantile or commercial, which was not intended to fall within the regulations of this chapter. It is noticeable that the words, "bill," and "bill of exchange," are used interchangeably in the several sections, as meaning one and the same thing; and, that the words, "bill of exchange," include a check, we have an direct adjudication, in construction of a similar statute in New York, in the case of Risley v. Bank, 83 N.Y. 318. So far as our investigations have gone, we have not seen a case, construing a statute in which the words "bill," or "bill of exchange" occur, where the question arose, in which they were not held to embrace a check. Section 1761 of this chapter of the Code provides, that "all bonds, bills, or notes, except those issued to circulate as money, payable to anything or bearer, to any fictitious person or bearer, or to bearer only, must be construed as if payable to the person from whom the consideration moved; if payable to an existing person or bearer, must be construed as if payable to such person or order."

It would seem that in case of a bill of exchange or check, which is payable "to an existing person or bearer," it needed no judicial construction to determine that it "must be construed as if payable to such person or order," since this is the positive injunction of the statute, which is not susceptible of being made plainer by any amount of judicial interpretation. This court, however was called to construe said section, in reference to municipal bonds which had been issued, payable to bearer simply. Having every other ingredient of negotiability, the court held, that they could not, in obedience to this statute, be construed otherwise, than as payable to the person from whom the consideration moved to the maker, when they were issued; and, so construing them, it was said, the legal title to them could not be derived, except through indorsement. And, as especially valuable to the case we have in hand, as to the policy of the law in the enactment of said section of the Code, and others belonging to the same system of law, we reproduce a part of that decision of the court. Chief Justice Brickell, speaking, said: "It may well be doubted, whether the former statute embraced any instrument payable to bearer only. The present statute not only embraces such an instrument, but every instrument (except bills or notes issued to circulate as money) which is payable to anything, or to any fictitious person, or bearer; and such instruments are not to be construed as payable to whoever may be the holder, but to the person from whom the consideration moves. If payable to an existing person, or bearer, then it is construed as payable to such person or order. The policy of the statute is to deprive instruments of negotiability, which do not on their face clearly indicate to whom their obligations apply, and from whom title can be securely derived; that title to negotiable instruments, which prevails over the title of the true owner, or over the equities of the original parties, shall be derived only by an indorsement in writing from him to whom they are expressly payable. Such, it is said by Judge Story, was at one time the law of France; because it was found that bills of exchange, payable to bearer only, or in which a blank was left for the name of the payee, became a cover of fraud and usury." Blackman v. Lehman, 63 Ala. 555; Story, Prom. Notes, § 38; Cobb v. Bryant, 86 Ala. 316, 5 So. 586. All the instruments mentioned in the statute were, before its enactment and according to the general commercial law, capable of being made...