Robinson v. Bank of Winslow

• Decision Date: 13 October 1908
• Docket Number: No. 6,484.,6,484.
• Citation: 85 N.E. 793,42 Ind.App. 350
• Parties: ROBINSON v. BANK OF WINSLOW.
• Court: Indiana Appellate Court

42 Ind.App. 350

85 N.E. 793

ROBINSON

v.BANK OF WINSLOW.

No. 6,484.

Appellate Court of Indiana, Division No. 2.

Oct. 13, 1908.

Appeal from Circuit Court, Pike County; E. A. Ely, Judge.

Action by Joseph L. Robinson against the Bank of Winslow. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions.

J. W. Brumfield and J. W. Wilson, for appellant. E. P. Richardson, A. H. Taylor, V. R. Greene, and Frank Ely, for appellee.

COMSTOCK, J.

Appellant, plaintiff below, brought this action against the appellee for the collection of a check drawn on the appellee by one Beasley, payable to appellant, for the sum of $77.65. The complaint was in two paragraphs. A demurrer for want of facts was sustained to the first paragraph. The cause was tried on the second paragraph, answer, and reply thereto. Upon a trial by the court there was a finding and judgment in favor of appellee for costs. The only error assigned is the overruling of appellant's motion for a new trial. The reasons for a new trial are that the finding and decision of the court are not sustained by sufficient evidence and are contrary to law. The following are the facts shown by the evidence:

On the 28th of March, 1906, one Beasley was indebted to the appellant in the sum of $77.65, evidenced by his promissory note. On said day appellant gave to one Josephine Hawkins, who was, and for six months previous thereto had been, living at appellant's house, a written order, of which the following is a copy: “Mr. Beasley-Sir: I send your note by Miss Hawkins. You will please pay her the money due on the note and oblige me. The amount due is $77.65. I bought some cattle to take next Saturday, and I will need the money to help pay for them. You will confer a great favor if you will send me the money by Miss Hawkins. Yours, J. L. Robinson.” Appellant gave this and the note to Miss Hawkins, and requested her to make settlement with Mr. Beasley. The request and note were delivered to said Beasley, and in payment of said note Beasley drew his check on the appellee's bank, payable to the order of appellant. Miss Hawkins presented this check to the bank, and was told by appellee that she would have to sign the appellant's name on the back of the check before it could be paid. She thereupon wrote the name of appellant upon the back of the check and received the money.

The question presented is simply one of agency. Was Miss Hawkins appellant's agent to indorse negotiable paper given in settlement of a debt due appellant? If she was such agent, the appropriation of the proceeds to her own use was a mere breach of trust, and would not affect appellee. In 1 Parsons on Contracts (6th Ed.) § 62, the author says: “An agent's acts in making or transferring negotiable paper (especially by indorsement) are much restrained. It seems that they can be authorized only by express or direct authority, or by some express power which necessarily implies these acts, because the power cannot be executed without them.” In Mechem on Agency, the author says (at section 382): “If an agent is authorized to accept checks in payment of the demand, he has no implied authority to indorse them and collect the money thereon, and the bank paying the cheek so indorsed is still liable to the principal for the amount thereof.” The learned author cites in footnotes the following cases which support the proposition: Graham v. U. S. Savings Inst., 46 Mo. 186;Robinson v. Chemical Bank, 86 N. Y. 404; Millard v....