First Nat. Bank v. First Nat. Bank

• Decision Date: 06 January 1898
• Citation: 116 Ala. 520,22 So. 976
• Parties: FIRST NAT. BANK OF BIRMINGHAM v. FIRST NAT. BANK OF NEWPORT, KY.
• Court: Alabama Supreme Court

22 So. 976

116 Ala. 520

FIRST NAT. BANK OF BIRMINGHAM v. FIRST NAT. BANK OF NEWPORT, KY.

Supreme Court of Alabama

January 6, 1898

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by the First National Bank of Newport, Ky., against the First National Bank of Birmingham, for damages for failure to return certain transfers of Texas land certificates. Judgment for plaintiff, and defendant appeals. Reversed.

The appellee, the First National Bank of Newport, Ky., brought this action against the First National Bank of Birmingham Ala., on August 11, 1892. The original complaint contained two counts. Subsequently the complaint was amended by adding a third count. The substance of the first and third counts are sufficiently stated in the opinion. The second count sought to recover of defendant the amount claimed in the other counts, as "money paid by the plaintiff for the defendant at its request." The first count was demurred to, the ground of which is sufficiently shown in the opinion. This demurrer was overruled. To the complaint as amended the defendant pleaded the general issue and several special pleas. In the fifth special plea the defendant averred that the plaintiff itself was guilty of negligence in this "That it failed to have the said land transfers, which it is alleged in the complaint were lost by the defendant recorded in the office of the county clerk of the county in which the lands called for by said transfers were located, as provided by the laws of Texas, as appears from article 4330 c. 3, tit. 86, Rev. St. Tex. 1879, hereto attached by a copy marked 'Exhibit A,' as filed in the office of the general land office of the state of Texas, as provided by the laws of the state of Texas, as appears from article 3808, c 2, tit. 79, Id., hereto attached by copy marked 'Exhibit B'; and the defendant avers that, if the plaintiff had prior to the time it transmitted said land transfers to the defendant, as alleged in the complaint, caused said land transfers to be so recorded or filed, as aforesaid, none of the damages alleged in the complaint to have been suffered by it by reason of the subsequent loss of said land transfers by the defendant would have been suffered by it, and none of the expenses which it is alleged in said complaint were necessarily incurred by it by reason of such loss of said land transfers would have been necessarily incurred by it." The seventh special plea was as follows: "(7) The defendant, for further answer to the third count of the complaint as amended, says that the alleged transfers upon which the plaintiff's cause of action was founded were received by one of its agents, and accepted by him; that at the time of the receipt of such transfers by such agent the defendant was not engaged in the business of receiving or handling land transfers for the purpose alleged in said count, and had not, by any act on its part, held itself out as being engaged in receiving such land transfers for the purposes therein alleged, and that it had not authorized its agent to receive such land transfers for such purposes, and had no knowledge except that of its land agent, prior to the time of the loss of such land transfers, that its agent had received said land transfers; and that it did not authorize, acquiesce in, or ratify the action of its said agent in so receiving land transfers from the plaintiff therein." The plaintiff demurred to these pleas. The grounds of demurrer to the fifth plea were as follows: "(1) For that the facts alleged in said plea fail to show any negligence on the part of plaintiff, or that such negligence, if shown at all, contributed proximately or otherwise to the want of due care charged against the defendant in the performance of its duties in and about the bailment in the first count of said complaint alleged, whereby plaintiff's loss of the certificates in said count mentioned was caused. (2) For that the omission or alleged negligence complained of against plaintiff in and by said plea occurred before said bailment in said count of said complaint mentioned was created, or said contract of bailment was made. (3) For that no such alleged negligence would or does excuse defendant for his failure to perform the bailment in said count alleged, but, on the contrary, makes the care which defendant owed to plaintiff greater. (4) For that said plea fails to set out the laws of Texas authorizing the recording of said certificates or transfers. (5) For that said plea fails to show that there was any law authorizing the record of said transfers or certificates." To the seventh plea the plaintiff demurred upon the following grounds: (1) For that said plea presents no defense to plaintiff's said action, nor does it allege any facts that bar or preclude plaintiff from recovering upon its causes of action in said count of said complaint set forth and alleged. (2) Because it is not necessary, to fasten a liability upon defendant for the breach of the contract of bailment averred, that the defendant should have held itself out as being engaged in the business of receiving for deposit such certificates or transfers as those set out and described in plaintiff's complaint, or that defendant should have been engaged in the business of receiving such land transfers or certificates for special deposit, or that defendant had not authorized its agent to receive the same. (3) Because the liability of defendant for breach of its contract of bailment as set out in plaintiff's complaint is not destroyed or affected by a want of knowledge on the part of any other officer or agent of defendant than of such agent or officer who did receive the said certificates or transfers of the fact that they had been so received, prior to the loss thereof. (4) Because it is not denied by the said plea that said defendant was at the time a banking institution, chartered and organized for the purpose of engaging in the general banking business, and in receiving claims and other papers for collection, in the usual course of business of such banks chartered under the national banking laws of the United States, and that, when its officer or officers received said certificates, it was engaged in carrying on said banking business; and does not deny that said certificates came to the hands of some officer of said bank, and does not deny the averment of the complaint that said certificates have not been returned to the plaintiff. (5) Because said defendant is liable to plaintiff for all such damages as proximately arose from the breach by defendant of its implied contract of bailment, and its promise to restore the said certificates to plaintiff on demand, whether or not defendant was engaged in the reception of such special deposits, or had or had not authorized its officers and agents to receive the same. (6) Because said count No. 3 avers that said papers were sent to defendant, as a bank, for the purposes of collection, and said plea attempts to escape liability for the loss of said collaterals so sent by pleading a limited authority to defendant's agent, without averring any notice to plaintiff of such limitation. The demurrer to the fifth plea was sustained, and the demurrer to the seventh plea was overruled. Thereupon the plaintiff filed the following replication: "(1) For a replication to defendant's seventh plea to the third count the plaintiff says that said twenty (20) transfers of land certificates were sent on, to wit, the 12th day of August, 1887, by the plaintiff, addressed to E. W. Linn, as cashier of the defendant, and who was such cashier, and were by said Linn, as such cashier of defendant, received on, to wit, the 16th day of August, 1887; and the receipt of said E. W. Linn, as the cashier of said defendant, who was authorized to receive all papers sent for deposit and collection, acknowledging that said package containing said papers had been received by defendant, and placed on the collection list of said bank, was forwarded and received by the plaintiff; and that no notice was given to plaintiff that said Linn did not have authority to receive them, and no return has ever been made of said papers by said defendant to plaintiff; wherefore plaintiff says that the defendant is estopped from denying that said Linn had authority to receive said papers, and that defendant received said transfers. (2) And for further replication to said plea plaintiff joins issue thereon." To this replication the defendant demurred upon the following grounds: "(1) Said replication does not aver that said E. W. Linn had authority to receive said transfers for the purpose for which it is alleged, in the third count of the complaint as amended, they were delivered to defendant. (2) It is not averred in the first replication to said plea, nor in third count of the complaint as amended, that the transfers were delivered to or received by the defendant for collection, and it is only averred in said replication that said E. W. Linn had authority to receive all papers delivered to defendant for deposit and collection. (3) The averment that E. W. Linn's receipt acknowledged that the package containing said transfers had been received by defendant, and placed on the collection list of said bank, is not an averment that said transfers were placed on the defendant's collection list, or received by defendant for collection. (4) Under the averment of the seventh plea and the first replication to it, no duty rested on the defendant to notify the plaintiff that said E. W. Linn did not have authority to receive said transfers for the purpose it is alleged in the third count they were delivered. (5) There are no facts averred in said replication which would estop defendant from denying the authority of said Linn to receive the transfers for...