Moses v. Franklin Bank of Baltimore

• Decision Date: 22 June 1871
• Citation: 34 Md. 574
• Parties: MOSES MOSES v. THE PRESIDENT AND DIRECTORS OF THE FRANKLIN BANK OF BALTIMORE.
• Court: Maryland Court of Appeals

34 Md. 574

MOSES MOSES v. THE PRESIDENT AND DIRECTORS OF THE FRANKLIN BANK OF BALTIMORE.

Court of Appeals of Maryland

June 22, 1871

APPEAL from the Superior Court of Baltimore City.

This action was brought by the appellees against the appellant upon the following check:

"$1,200.BALTIMORE, June 16th, 1869.

Cecil National Bank of Port Deposit, Md., pay to Moses Moses, or order, twelve hundred dollars.

JACOB TOME & CO."

"Endorsed--Moses Moses, Elliott & Blacklar, pay J. B. Ramsay, Cash. for collection account, Franklin Bank, Baltimore.Chas. Goodwin Cash."

The declaration contained the common money counts, and a special count in the usual form, charging the defendant as endorser upon the check.The defendant pleaded never indebted and never promised, and issues were joined thereon.A verdict was rendered for the plaintiffs for $1,315.20, and judgment entered accordingly.

First Exception:The plaintiffs proved by their receiving teller, that on the 17th of June, 1869, the check on which this action was brought, was presented at the Franklin Bank for discount by Mr. Elliott, and upon his certifying that it was all right, it was cashed, after deducting one-half per cent. the usual charge for collection and was then passed through the books in the usual way, and was sent off to Port Deposit the same day, and returned on the 19th, about one o'clock, P. M.The same witness proved, on cross-examination, that on the 17th of June, 1869 the Cecil Bank of Port Deposit had over $17,000 to its credit in the Franklin Bank, and the check was at once debited to said account.The plaintiffs then offered in evidence the protest of the check, to which the defendant objected, and his objection being overruled by the Court, he excepted.

Second Exception:The plaintiffs further proved by a witness, who was at the time a clerk and messenger in their bank, that he mailed a letter from the cashier of the Franklin Bank to the cashier of the Cecil Bank, enclosing the said check.The check came back protested on the 19th, between 1 and 2 o'clock, P. M., and three pieces of paper, in the form of notices of protest to Moses, Elliott & Blacklar, and to Charles Goodwin, cashier, were enclosed with it.Witness, on the same afternoon, delivered to the defendant, the notice addressed to him, but could not say exactly what were its contents, except that he saw it was a notice of protest.Plaintiffs admitted the check to have been genuine, and that there were at the time sufficient funds of the drawers in the Cecil Bank to have paid it.The defendant produced no testimony, but asked the following instructions to the jury:

1.If the jury believe from the evidence that the check in question became the property of the Franklin Bank in the mode detailed in the evidence, and that at that time there were funds in the hands of said bank belonging to the Cecil Bank, (the drawee of the check,) equal in amount to the amount of the check; and also believe that Tome & Co., the drawers thereof, had funds in the said Cecil Bank sufficient to meet the amount of said check, and that the plaintiff debited the amount of said check in their account with the Cecil Bank, then the check has been paid and the plaintiff cannot recover against the defendant, notwithstanding the check was afterwards protested and returned to the Franklin Bank.

2.That there is no sufficient evidence of notice to the defendant of demand on the drawers of the check in question, and refusal to pay the same, to authorize a recovery thereon against the defendant.

The Court refused the instructions and the defendant excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ALVEY, J.

Orville Horwitz, for the appellant.

The provisions of the 6th and 7th sections of Article 14 of the Code of Public General Laws, do not apply to checks.Chitty on Bills, 512; Ivory vs. Bank of the State of Missouri, 36 Missouri, 475; Andrew, &c. vs. Blackley, &c., 11 Ohio,( N. S.,) 89;In re EphraimBrown, 2 Story, 511;Conroy vs. Warren, 3 Johnson's Cases, 261; Bowen vs. Newell, 4 Selden, 195.

There was no sufficient evidence, in point of fact, of the delivery of the notice of protest to the defendant.

It being admitted that there were funds in the Cecil Bank adequate to meet the check in question, the endorsement thereof to the Franklin Bank transferred to the said Franklin Bank an amount of these funds equal to the amount of the check, and the Cecil Bank then became the debtor of the Franklin Bank to the amount of that check; the Franklin Bank having the funds of the Cecil Bank in its own possession, and having already, by its entry to the debit of the Cecil Bank on its books of the check, appropriated so much of said funds as were necessary, the check was, in point of fact and of law, paid to the plaintiff, and the plaintiff, therefore, cannot now proceed to collect it again.Munro, et al. vs. Burch, et al.,25 Ill., 35;In re EphraimBrown, 2 Story, 511;Brown vs. Lush, 4 Yerger, 210;Van Bibber vs. Louisiana Bank,14 Louisa. An. Rep., 481, 482, 483;Chicago Mar. Ins. Co. vs. Stanford,28 Ill., 168;Rothschild vs. Corney,9 Barn. & Cress., 388.

Wm. Reynolds, Jr., and Thomas Donaldson, for the appellee.

The Superior Court was right in allowing the protest of the check sued on, to be read in evidence to the jury, under the Act of 1837, ch. 253, embodied in sections 6and7 of Article 14 of the Code of Public General Laws, which makes the protest duly made by a notary public of a bill of exchange, whether foreign or inland, for non-acceptance or non-payment, prima facie evidence of such non-acceptance or non-payment, &c., a check being an inland bill of exchange.Byles on Bills, 10, and cases cited in note;Woods vs. Shroeder,4 H. & J., 381;Harker vs. Anderson,21 Wend., 372;Chapman vs. White,2 Seld., 412;Chitty on Bills, 572; 3 Kent's Commentaries, 74.

The defendant's second prayer was properly rejected:

First: Because if a check be protestable, the protest was prima facie evidence of notice having been sent under the Code of Public General Laws, Article 14, section 7; and a witness proved that he delivered to the defendant the notice sent with the protest.

Second: Even if a check be held not protestable, and the protest was therefore a nullity, a witness testified that he delivered to the defendant a notice addressed to him, and which he had read over and saw that it was a notice of protest, and it was competent for the plaintiff to prove the contents of such notice by parol, without notice to the defendant to produce the original.Ackland vs. Pearce,2 Camp., 601;Ekins vs. Hanley, 2 Fox & Smith, 1, 3, 4;Kine vs. Beaumont,3 Brod. & Bing., 288;Lindenburger vs. Beall,6 Wheat., 104;Johnson vs. Haight,13 John., 370;Tower vs. Wilson, 3 Cain'sRep., 174;Smyth vs. Hawthorn,3 Rawle, 355;Eisenhart vs. Slaymaker, 14 Sergeant & Rawle, 156;Eagle Bank vs. Chapen,3 Pick., 180;Taylor vs. Bank of Illinois, 7 Monroe, 756-758;Leavite vs. Simes, 3 New HampshireRep., 14;Faribault vs. Ely,2 Dev. Rep., 67.

The defendant's first prayer was properly rejected, because the plaintiff had no right to appropriate funds of the Cecil Bank in its possession, to the payment of checks drawn upon it by third parties, without express authority from the Cecil Bank so to do, even if the plaintiff knew that Tome & Co. had sufficient funds at that time in the Cecil Bank to meet said check, and there is in this instance, no evidence of such knowledge on the part of the plaintiff.It is true that the check was debited to the account of the Cecil Bank; but this was a mere entry, made for the convenience of keeping accounts, upon the supposition that the check would be honored by the Cecil Bank, to be rectified...