United States v. Pinover

• Decision Date: 24 June 1880
• Parties: THE UNITED STATES v. PINOVER.
• Court: U.S. District Court — Southern District of New York

3 F. 305

THE UNITED STATES v. PINOVER.

United States District Court, S.D. New York.

June 24, 1880

S. L Woodford, District Attorney, and P. L. Butler, Assistant District Attorney, for plaintiff.

M. M Budlong, for defendant.

CHOATE D.J.

This was an action brought by the plaintiff to recover of the defendant the amount of a $500 government bond, paid by the assistant treasurer, at New York, to the defendant, on the presentation of the same at his office in New York. The bond was payable to the order of Robert Mickle. It had indorsed upon it an assignment purporting to be signed by Robert Mickle, transferring it to Levi H. Borne. It was overdue when presented for redemption. The defendant presented with it a power of attorney, duly acknowledged, from Levi H. Borne, who lived in Indiana, authorizing him, as attorney of said Borne to sell and assign or collect the said bond. When the defendant presented the bond, and this power of attorney, the assistant treasurer received the same, and gave to defendant the following receipt:

'Received from Alexander Pinover, attorney, $500, in U.S. 5-20 bonds; payment made subject to examination and acceptance of bonds by the department at Washington.

'C. N. PATTERSON, 'Department Assistant Treasurer.'

The defendant at the same time executed upon the back of the bond the following instrument:

'For value received I assign unto the secretary of the treasury for redemption.

'ALEXANDER PINOVER, Attorney.

'November 4, 1878.'

The defendant was told to take the receipt to the cashier in another part of the building and get his money. He did so, and upon presentation of the receipt to the cashier he was paid the amount due on the bond, and gave a receipt for it as follows:

"NEW YORK, November 4, 1878.

"The treasury of the United States redeemed to Alexander

Pinover United States 5-20 bonds, account, etc., ..........	$500.00
Interest, ....................................................	7.64
	-------
	$507.64

'Received payment.

'ALEXANDER PINOVER.'

Upon examination at Washington it was discovered that this bond was one which had been reported lost or stolen, and for which a duplicate had been issued to Robert Mickle, upon his giving a bond of indemnity. Thereupon the plaintiff made demand upon the defendant for repayment of the money, and, that being refused, brought this suit to recover the same as money paid under a mistake of fact, alleging that what purported to be the signature of Robert Mickle to the assignment was a forgery.

The answer of the defendant denied the forgery, and set up as a separate defence that he acted in good faith and only as the agent of Borne in the transaction; that he was known to the plaintiff to be acting as such agent, and that immediately after receiving the money he paid it over to his principal. In respect to the receipt given by the assistant treasurer to the defendant, to be handed to the cashier, the defendant testified that he did not read it or know its contents; that he simply took it to the cashier and handed it to him as directed. There was no evidence, except the fact that the paper was handed to him and held by him in passing from the office of the assistant treasurer to that of the cashier, that he received any information of its contents, or was in fact informed that the assistant treasurer received the bond subject to examination and approval at Washington. Upon the question of the alleged forgery of the name of Robert Mickle, the jury found specially that it was a forgery, and it is not claimed that there was any error committed in the trial of that issue.

The jury were instructed that the taking and holding of the receipt, till it was surrendered to the cashier, was some evidence of notice to the defendant of its contents; that if in fact the defendant was informed that the bond was received subject to examination and acceptance at Washington, and if the signature to the assignment was a forgery, the plaintiff was entitled to recover; that if the defendant used the receipt without any knowledge in fact of its contents, but merely as a token to be handed to the cashier as he was directed, then he was not chargeable with knowledge of its contents; and there being no dispute that the defendant acted in good faith, and was known to be and treated as an agent in the transaction, and had paid over the money to his principal, he was not liable to repay it.

Under these instructions the jury, besides finding the special verdict of forgery, found a verdict generally for the defendant. The plaintiff now moves for judgment on the ground that the finding of the fact of forgery entitles the plaintiff to a judgment, or in the alternative for a new trial for error of law and misdirection of the jury.

It is claimed that there was error in leaving it to the jury to determine, as a question of fact, whether the giving of the receipt was a communication of the fact stated therein, that the bond was received subject to examination and acceptance at Washington. But if the point assumed in this ruling was correct, that it was incumbent on the assistant treasurer to communicate this fact, then I think it is clear that there was no error to the prejudice of the plaintiff in the manner in which this question was submitted. A person chargeable with the duty of giving a notice does not perform that duty by handing the party entitled to notice a paper containing such notice, especially if the person to whom it is handed is directed to use it in a particular way and for a particular purpose, which does not require him to examine or read it. If he does read it, it is of course notice to him of the contents. But if his attention is not called to its contents-- if he is not told to read it, but is told simply to take it somewhere else and present it and get his money, and he does so without reading or learning its contents-- it would be most unreasonable to hold that the duty of communicating the fact written upon it has been discharged. No authority for such a proposition has been cited.

It is also claimed by the plaintiff that money paid under a mistake of fact to one who is known to be and treated as an agent can be recovered back from the agent, even after he has paid it over to his principal, in case the principal had no right to give the agent authority to act. The argument is that one who has no right to receive money can give no authority to another to act as his agent in receiving it, and so that the power of attorney in such a case is a nullity, and no act done under it can avail the assumed agent as a defence. I think this reasoning is unsound, and not in accordance with the authorities. If A. holds B.'s note and sends his servant to B. with the note demanding payment for A., and B knowing that the person presenting the note is presenting it as servant or agent of A., and not for himself, thereupon takes the note and gives the money to the servant, he gives it to him for the purpose of having him pay over the money to A. Though nothing is said, the payment is with an implied direction to deliver the money to A. as surely as if B. should say: 'Here, take this to your master. ' If, now, the next day it is discovered that the note had been already paid, and therefore that A. had no right to receive the money, nor any right to authorize his servant to receive it on his behalf, yet B. would have no claim on the servant, who has done only what he consented to his doing in paying the money to his master. He must look to A., with whom, in fact and in contemplation of law, the transaction was had. The weight of the authorities is clearly in favor of this view of the law. Holland v. Russell, 30 L.J. (Q.B.) 312; 32 L.J. (Q.B.) 297; Shand v. Grant, 15...