Societe des Mines d'Argent et Fonderies de Bingham v. Mackintosh
| Decision Date | 28 July 1890 |
| Citation | 7 Utah 35,24 P. 669 |
| Parties | SOCIETE DES MINES D'ARGENT ET FONDERIES DE BINGHAM, APPELLANT, v. RICHARD MACKINTOSH, RESPONDENT |
| Court | Utah Supreme Court |
APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts. For the former opinion see Societe des Mines v. Mackintosh, 5 Utah 568.
Affirmed.
Messrs Marshall and Royle, for the appellant.
Messrs Bennett, Marshall and Bradley and Mr. Robert Harkness, for the respondent.
This suit was brought December 23, 1884; tried before the court December 30, 1886, and judgment rendered for defendant; appeal had to supreme court, and on May 2, 1888, judgment was reversed. On January 23, 1890, the cause was retried by the court, jury being waived, and judgment again rendered for defendant, and a motion was made for a new trial, and the motion was overruled. From the overruling of the motion for a new trial, and the judgment, this appeal is taken. The complaint alleges that the plaintiff, a foreign corporation, did business in mining in this country in the name of "F. Medhurst, Commercial Director." That the defendant well knew that was the name in which the company did business. That the defendant, at the city of Salt Lake, on the 3d day of February, 1882, under the name of "R. Mackintosh," executed and delivered to plaintiff, under the name and style of "F. Medhurst, Commercial Director," his promissory note as follows: ." That said note has not been paid, nor any part thereof. The respondent answered denying specifically the allegations of the complaint, and for a further answer set up affirmatively that said note was given to Medhurst alone, for his own use, and not given to plaintiff; that it was an accommodation note, for which he got no consideration; that it was given to Medhurst for his sole and private use; that the plaintiff had no interest in the note whatever, and paid no consideration for it. The defendant also pleaded a counter-claim, as follows: That the said Medhurst, at the time the note sued upon was given, gave him, as an offset to that note, a note for like amount, with like interest, payable at the same time, and signed it "F. MEDHURST, Com.," which was to protect him if anything should happen Medhurst, and that the whole transaction was a private one between him and Medhurst, in which the plaintiff had no interest. The record shows the facts substantially as follows:
The appellant was a foreign corporation doing a large mining business in Utah. F. Medhurst was its financial agent. It kept its bank-account in the name of F. Medhurst, Commercial Director. The business at the mine was under the management of one Cohen, and at the mine the business was carried on in the name of the appellant, and its vouchers and all its papers were in its name. The respondent carried on an ore-sampling business, and sampled the ores of the appellant for several years; sampled a large amount of ores, and was paid by checks on the banks signed "F. MEDHURST, Commercial Director," or an abbreviation thereof. Medhurst used the funds of the company to a large amount, and on February 3, 1882, Medhurst went to respondent, and on certain representations, of an indefinite character, induced him to sign the note sued upon, payable to F. Medhurst, Commercial Director, with the distinct understanding that it was for Medhurst's personal use, and was not to be negotiated. This note was put in an envelope, and handed to one Fox, the book-keeper of the company, with the direction by Medhurst that it was to be put into the safe where the company's papers and the private papers of Medhurst were kept, and was not to be negotiated. The appellant did not know of the note until about two years afterwards, and after Medhurst had left the country. Then it found the note in an envelope, as it was at the time it was put into the safe; and on December 23, 1884, brought this suit upon it. At the time the note was given Medhurst gave to the respondent a note for a like amount, with like interest, signed "F. MEDHURST, Com.," remarking, this would protect him if anything would happen, and also gave him the following statement:
The note given to Medhurst was not indorsed when the appellant found it in the safe. At the time respondent gave the note sued upon, Medhurst gave to respondent a check as follows:
Which was indorsed by respondent, and Medhurst got the money upon it. This check was given without explanation by Medhurst, and was indorsed by respondent, without any explanation asked for. Before that time, the following check was made and used by Medhurst:
Feb. 1st, 1882.
[7 Utah 39] --Which was indorsed by Medhurst, and used by him, but respondent knew nothing of this check at the time be gave the note sued upon, nor until after this suit was brought. On February 4, 1882, Medhurst caused the book-keeper to enter upon the books of the appellant the following:
Bills receivable, loans to Mackintosh, etc.
Dr. To cash
$ 7,000
Represented by credit to M
$ 3,800
Check of Feb. 1st
1,700
Check of Feb. 4th
1,500
Of which entry respondent knew nothing until shown in court. In October, 1881, F. Medhurst, being short in his account to the appellant, drew a check on the company in favor of respondent for $ 4,500, which respondent indorsed and handed back to Medhurst, and he caused Fox, his book-keeper, to enter it on the books of the company as a bona fide loan to respondent, but respondent knew nothing of the use Medhurst made of the check, nor was anything said, at the time he indorsed it, of the use Medhurst intended to make of it. The findings of fact by the court were substantially as stated above, and as a conclusion of law the court says: "I find the defendant did not make or deliver the note to the plaintiff; that the plaintiff take nothing by its action; and that defendant is entitled to judgment for costs of suit, and judgment accordingly is entered." We think the findings of the court are fully sustained by the evidence; and as they have the force and effect of the verdict of a jury in a suit at law, when the case is tried by the court, as this case was, the evidence in the record will not justify us in setting them aside.
We do not see what the check for $ 4,500 has to do with this case or the check of $ 1,700. They are not sued upon or mentioned in the pleadings, and the evidence does not show that they in any way entered into the consideration of the note sued upon, or had any connection with it; and the $ 4,500 check was indorsed a long time before the note was given. Where a note is made to one party, and delivered to another party as the real payee of the note, the real payee may sue in his own name upon the note, and allege it was made to him in the name of the party mentioned in the note, and parol proof is admissible to prove the allegation, and if it is proved he can recover. But the parol...
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