Harvey v. Girard National Bank

• Decision Date: 19 March 1888
• Docket Number: 180
• Citation: 119 Pa. 212,13 A. 202
• Parties: THOMAS HARVEY v. GIRARD NATIONAL BANK
• Court: Pennsylvania Supreme Court

13 A. 202

119 Pa. 212

THOMAS HARVEY v. GIRARD NATIONAL BANK

No. 180

Supreme Court of Pennsylvania

March 19, 1888

Argued January 4, 1888

ERROR TO THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 180 July Term 1886, Sup. Ct.; court below, No. 506 June Term 1885, C.P. No. 4.

On June 3, 1885, Thomas Harvey brought an action in case against the Girard National Bank, to recover damages sustained by the alleged negligence of the defendant bank to present for payment a draft upon the plaintiff at the place where payable and where funds had been deposited to meet it. The plea was not guilty.

By agreement of parties, the cause was tried on May 21, 1886 without a jury, before WILLSON, J., who on May 28, 1886 announced the following findings of fact and law:

The declaration alleges a promise on the part of the defendant to the plaintiff that it would promptly and properly make presentment and demand, but, in the absence of any evidence of an express promise, he must rely upon an implied undertaking to that effect, if any can be inferred from the facts of the case.

From the evidence produced before me, I find the following conclusions of fact, viz.:

1. That, on May 25, 1885, Thomas R. Alcorn, who was the agent of the plaintiff authorized to purchase live stock on his account, and to draw upon him for the price of such stock when purchased, bought for the plaintiff a quantity of sheep from Swope, Hughes & Waltz of Buffalo, New York, and paid for the same by a sight draft drawn upon the plaintiff in the following words and terms, viz.:

$799.22.

BUFFALO N.Y., May 25, 1885.

At sight, without grace, pay to the order of Swope, Hughes & Waltz, Seven hundred and ninety-nine and twenty-two one hundredth dollars at the Shackamaxon Bank.

Value received and charge the same to account of

To

THOMAS R. ALCORN.

Thomas Harvey, Philadelphia, Pa.

2. That Alcorn thereupon advised the plaintiff of the drawing of the said draft, and on May 26, 1885, the plaintiff took the sum of $842.71 to the Shackamaxon Bank, handed the same to Mr. Milligan, the receiving and paying teller thereof (the cashier being sick and absent), informed him that a draft for the sum of $799.22 had been drawn upon him, and instructed the teller to pay it when it should be presented, which he said he would do. This sum of money, $842.71, was then entered to the credit of the plaintiff on the books of the Shackamaxon Bank.

3. The draft in question was indorsed over by the payees thereof to the Marine Bank of Buffalo, or order, by that bank indorsed over to the Bank of North America, New York, or order, and again, by the latter bank, indorsed over to the order of the defendant, the Girard National Bank, for collection and remittance "to the said Bank of North America." The defendant received the draft on May 27, 1885.

4. The defendant bank sent the said draft by mail to the said Shackamaxon Bank, on May 27, 1885, and it was received by the latter bank on May 28, 1885, and its receipt acknowledged in a communication of the same date announcing its suspension. No other presentment of the draft, or demand for its payment, was made until June 1, 1885, when payment was formally demanded and refused, as appears by the certificate of the notary.

5. If the said draft had been presented by an officer or messenger of the defendant at the Shackamaxon Bank, on either May 27, or May 28, 1885, it would have been paid.

6. The defendant bank was the agent of the Shackamaxon Bank for the purpose of making exchanges and settlements through the Clearing House. It had telephone connection therewith, and was distant therefrom, in point of time not over three quarters of an hour by the usual street car route.

7. The Shackamaxon Bank, though it continued to transact business in the usual manner until the close of business hours on May 28, 1885, did not open its doors for business on May 29, 1885, in consequence of its failure. At that time, the time of its failure, the balance standing to the credit of the plaintiff in his account with that bank was in excess of the amount of the draft in question. That balance, being of $1,049.87, still remains to his credit on the bank's books. The Shackamaxon Bank has never resumed payment, and its affairs are in process of liquidation.

8. On June 2, 1885, the plaintiff having been informed by the defendant that it held the draft in question, paid to the defendant, under protest, the amount due thereon and took it up. At the same time he received from the defendant the following statement in writing, viz.:

PHILADELPHIA, June 2, 1885.

THOMAS HARVEY, ESQ.

Dear Sir: -- Thomas R. Alcorn's draft upon you for $799.22 was received through the Bank of North America of New York, on May 27th. Payment was refused. The Shackamaxon Bank returned to us, and received by us June 1st, on account of failure of the bank.

WHITEMAN, Cashier.

Upon the facts of this case, as stated, I reach the following conclusions:

1. That the defendant bank was negligent towards the holders of the draft in question, in that it did not present the said draft at the Shackamaxon Bank and demand payment thereof in such manner as to obtain either payment or refusal to pay, before the close of business hours on May 28, 1885.

2. [The liability of the defendant arising from the negligence just referred to was terminated and ceased when, on June 2, 1885, the plaintiff paid to it the amount due upon the draft, and thereupon, took it up;] there being no allegation that the defendant has failed to account for and pay over the money thus collected.

3. [The defendant, merely because of the relation which it assumed, in the ordinary course of business, towards the collection of the draft, under an authority which came primarily from the payees of the draft, owed no legal duty to the plaintiff, which was violated by its failure to present and demand payment of the draft, before the end of business hours on May 28, 1885.]

4. Even if the proposition last stated be not sound, in its broadest application, [the plaintiff has no right of action against the defendant under the circumstances of this case.] As I look at the case, [the plaintiff was not in any legal sense or degree injured by the failure of the defendant to obtain the money due upon the draft before the suspension of the Shackamaxon Bank. The only interest which either he or his agent, the drawer of the paper, had in it, was that it should be the instrument to pay for the sheep purchased. This, however, was effectually accomplished, under the facts of the case, without the payment made by the plaintiff on June 2, 1885, when he took up the draft.] [That was purely a voluntary payment by him. He was not bound to make it. As regarded all parties interested in the paper, he was discharged from further liability of every kind, by the negligence of the defendant bank, which represented the holders of the draft for its collection.] [The debt to the payees was paid, so far as the plaintiff was concerned, when the defendant negligently failed to present the draft in time to obtain payment of it. Undoubtedly the defendant then became responsible to the real holders of the paper, and they could have recovered against it, but they had no claim against the plaintiff. He had afforded them the means of payment and they had lost it, by negligence for which they were responsible. The effect of this was payment, as between the payees or the holders and him.]

It is unfortunate for the plaintiff that he did not stand upon his rights, and leave the holders of the draft to their action against the defendant. He would then have saved the amount, which he voluntarily paid to take up the draft. This payment was actually in relief of the defendant, without any advantage to him. [It resulted in destroying the claim which the holders would otherwise have had against the defendant;] a claim founded upon a state of facts that relieved him from liability upon the paper or in the transaction out of which it grew. [I am not able to see that the plaintiff acquired any new right as against the defendant by reason of the payment made by him, to take up the draft on June 2, 1885.] [There was no express contractual relation between the plaintiff and the defendant,] and it seems to me that the latter discharged the whole implied obligation towards all to whom it owed such an obligation, when it obtained the money due upon the draft and transmitted that amount to its predecessor in the line of collection.

I must, therefore, find and decide in favor of the defendant, which I hereby do.

Judgment having been entered for the defendant bank, the plaintiff thereupon took this writ, assigning for error:

1-9. The conclusions of law embraced in [] to

10, 11. The finding in favor of the defendant instead of for the plaintiff for the whole amount claimed.

Judgment affirmed.

Mr. F. Carroll Brewster (with him Mr. Octavius A. Law), for the plaintiff in error:

1. The point here is, can the plaintiff recover from the defendant? Want of privity between the parties cannot properly be interposed. If one pay money to another for the use of a third party, or in any manner place that other in position where he should receive money for such use, the depositary is liable in assumpsit at the suit of him who is beneficially concerned, and this notwithstanding the want of direct privity: Bullitt v. M. E. Church, 26 Pa. 108; Evans v. Waln, 71 Pa. 69; Sheffer v Montgomery, 65 Pa. 329; Keller v. Rhoades, 39 Pa. 513. But the case of the plaintiff is strengthened by the fact that the action, not in form alone but essentially, sounds in tort. One injuring another by his negligent acts cannot, upon suit for such injury, deny his responsibility therefor, to...