Niblack v. Cosler, 4,658.

• Decision Date: 01 June 1896
• Docket Number: 4,658.
• Citation: 74 F. 1000
• Parties: NIBLACK v. COSLER.
• Court: U.S. District Court — Southern District of Ohio

74 F. 1000

NIBLACK v. COSLER.

No. 4,658.

United States Circuit Court, S.D. Ohio, Western Division.

June 1, 1896

Duncan & Gilbert, Scribner & Hurd, and H. A. Fulton, for complainant.

Harmon Colston, Goldsmith & Hoadley and Charles Darlington, for respondent.

SAGE District Judge.

This suit is to compel the allowance of a claim against the Valley Bank, founded upon two certificates of deposit which the defendant has rejected. The material facts, as they appear in the record, are as follows:

Dwiggins Starbuck & Co. owned a half interest in the Valley Bank, a private banking institution located at Yellow Springs, Ohio and S. S. Pucket and his brother owned the other half. James M. Starbuck of Dwiggins, Starbuck & Co., was president, W. H Starbuck, vice president, S. S. Pucket, cashier, and S. S. Cosler, teller.

On the 17th of November, 1892, the Valley Bank issued to Dwiggins, Starbuck & Co. a certificate of deposit for $4,175, payable 'in certain notes,' which words were substituted for the words 'in current funds,' erased from the printed form. The only consideration for this certificate was the deposit in the bank of the notes referred to, the same being equal in amount to the amount of certificate, which was issued as evidence of the deposit. The certificate was marked 'Special Deposit,' and the notes referred to were sealed up and kept by the Valley Bank as a special deposit. Prior to April 19, 1893, this certificate had been negotiated and transferred to the Columbia Bank of Chicago, of which Zimri Dwiggins of the firm of Dwiggins, Starbuck & Co., was the president.

In April, 1893, this certificate was sent to the Valley Bank for payment. The notes had not been collected, and the cashier of the Valley Bank was directed to return it. The signature to the certificate having been torn, the cashier was instructed to write a duplicate for it, and return it to the Columbia National Bank. He prepared and mailed the duplicate, but by carelessness or inadvertence omitted to erase from the printed form the words 'in current funds' and substitute the words 'in current notes.' He also omitted to write across the face of the certificate 'Special Deposit.' The notes referred to were the remaining assets of a prior banking concern in which Dwiggins, Starbuck & Co. owned one-half and the Puckets one-half. The certificate to Dwiggins, Starbuck & Co. represented their half interest, and a like certificate to Pucket and brother represented their interest.

The second certificate, for $5,150, in favor of the United States Loan & Trust Company, negotiable and payable in current funds, is dated February 1, 1893. The history of the transaction leading up to the issuance of this certificate, as disclosed by the record, is that on February 2, 1893, Dwiggins, Starbuck & Co. deposited certain bonds in the Valley Bank, and received therefor a certificate of deposit, in preparing which a printed form was used. The words 'payable in current funds' were erased, and the words 'payable in certain bonds' substituted, the amount named in the certificate being the exact amount of the bonds specified, with interest. Across the face of this certificate, which was mailed to Dwiggins, Starbuck & Co., Chicago, was written 'Special Deposit.'

On the 4th of February, 1893, Dwiggins, Starbuck & Co. returned it, stating that the United States Loan & Trust Company was the real depositor of said bonds, and requesting that a certificate in favor of that company be substituted for the one returned, and that it be dated February 1st, instead of February 2d. The request was granted, but the teller of the bank, in issuing the new certificate, was guilty of the same carelessness and neglect as in the case of the first certificate; that is to say, he failed to erase from the printed form the words 'in current funds,' and to substitute therefor the words 'in certain bonds.' He failed to mark the certificate 'Special Deposit.'

There was no new or other consideration whatever for the issuing of the new certificate. As to the first certificate, the evidence established that it was merely mailed to the Valley Bank for payment. There is no equity in the claim made upon the new certificate. It stands upon the same footing as the original certificate from which the name had been torn, and that certificate showed that it was payable only in the notes referred to. The defendant pleads that he holds these notes and is ready to surrender them to the complainant, which is all that the complainant has a right to ask. The claim that this certificate was issued in payment of the original is completely negatived by the facts. It was intended to be substituted for...