RAILROAD .. BANKING 00.
·· It is not esteemed any good ground for presuming a waiver of privilege from arrest, because the person takes the ordinary and, p10st expeditious mode of freeing himself from arrest." Redfield, J., in Wa8hburn v.Phelp8, 24 Vt. 506. It appears in this case that an answer to the merits was filed with the plea in abatement. It has been decided that in Massachusetts the validity of neither is affected by their being pleaded together, and that the plea in abatement is not thereby waived. Fi8her v.Fraprie, 125 Mass. 472; 0' Loughlin v. Bird, 128 Mass. 600. Upon the whole we are of the opinion that the plea in abatement should be sustained. Action dismissed.
See Atchison v. Mom" 11 FED. REP. 582; PUm/nf,nn, v. Winslow,9 FED. REP. 365; Matthews v. Puffer, 10 FED. REP. 606, anu J!ot6.
& Co. v. CENTRAL RAILROAD & BANKINCi' Co.
(Cireui' Oowrt, .M. D. Alabama. 1882.)
COHM:ON CARRmR-ALTERED BILL
The fact that the shipper was allowed to fill the bill of .Jading in his OWn handwriting, and leave a blank which afforded opportunity for increasing the statement of the number of bales shipped, will not render the common liable for loss occasioned by the 'f()rgery of the shipper in rllising the bill of lading. . .,
Action for Damages. Demurrer to complaint. WOQDS, Justice. The gravamen of the complaint is that the.defen:l. ant so negligently performed its duty in respect to the out of the bills of lading that it was j,n the power of anyone tocomm.it the fraud alleged.· The question is, does the fact that the ,shipper was allowed to fill the bill of lading in his own handwriting, and leave a blank which afforded opportunity fOF increasing the statement of,the number of bales shipped, render the common carrier liable for any loss occasioned by the forgery of. the shipper in raising the bill of lading? We think that upon .theweight of reason and authority the question must be answered in, the negative. most nearly J;'esetllbling are those in which a promThe issory note has been executel1 complete upon its face, in which there blanks left by t}1e maker, in, which, the, of the note, additional words, withpi9-t ,of, the in dra w-
ing, had, been inserted, increasing the amount of the note, or the rate of interest, etc. Such notes have been held to be void in the hands of a bona fide holder. The rule established by the authorities seems to be that where a note complete on its face and not entrusted by the maker to anyone for the purpose of being filled up or added to, but which is afterwards altered without the authority or assent of the maker,by the insertion of additional words in blank spaMs therein, the maker cannot be held to have contracted with every subsequent innocent holder who may thereby be defrauded, and is not liable to him in an action on the note in its altered form. Greenfield Savings Bank v. Stowell, 123 Mass. 196, and cases therein cited. lIt J,Vade, v. Jf:ithington, 1 MIen, 561, the defence that note for $100 had been fraudulently altered afterlt had been signed, by, inserting the words "and forty," was sustained against a bona fide indorser, although the alteration could not be. detected on the most careful scrutiny. So in McGrath v.Olark, 56 N. Y. 34, when a blank. left in a.note was filled the "with 'interest'" after it had been signed by the maker, and indorsed by the payer, and the words were inserted without the assent of the indorser, it was held that the note was void as to the la,tter. Chief in delivering ,the of court, said : "The rule that when one of two innocent parties must suffer by the act of a third, he whohas enabled, such third person to applicable, for the, reason occasion the loss must sustain that the indorser did n,ot in any legal sense enable the maker to make the He indorsed a note for a specifio sum; whioh, soB we have seen, conferred no authbrityupon the maker to change or alter it it did, indorsers, would 013<lUpy a perilous positi6B.," 'In the of Wor'rfall ,v. Gheen, :t9' Pa.. St. 388, a ptintedform of a promissory 'note had 'been filled,' up by the maker, and then indorsed for his accommodation by' 'a.nd then altered by the maker to a larger sum 'by taking advantage of some' vacant space l'eft in'the form. Upon this case said:, "If the samehadbeeitileIt entirely blank the impression,ironld ha'Ve been that this pa:rties authorized thehorderto 'act asthiHr agent in filling it 'in, ana they been bound But when the aum'isactually would written,we can make no such from this 'fact that there is rooin to write more. This fac'tshows but it waEtnotthe the: indorser but thef6rgery of the make),' that was .. that 'misled the holder.'i'·.: '
LEHMAN 'V. OENTRAL RAILROAD. BANKING
In Holmes v. Trumper, 22 it was held that a promiSsory note which consisted of a printed blank, with the amount and time and place of payment filled in writing, and was altered, witl;lOut the knowledge and consent of the maker, by adding after the printed words "with interest at," at the end of the note, the words "ten ,per were thereby rendered void against an indorser who bought it in good faith. The court said: "The argumentforthe plaintiff amounts simply to this: that by the maker's awkwardness or negligence his note was issued by him in a shape which rendered it somewhat easier for another person to commit a crime than if he had taken the precaution to erase the word "at" and to draw a line through the blank which followed it, and that a forgery committed by filling this blank would be less likely to excite 8uspicion than if committ!:ld in some other way." But the court held the argument not tQ.be sound, and declaI'e(l' that "whenever a party in good promissory he shQuld beequally protected from its note, however awkwardlydr/l alteration by forgery, in whatever mude it may be; accomplished, unless, perhaps, when it ,has been comD;litted by some one in. whom he has authorized others to place confidence, as actingfor him. He has quite as good a right to rest upen the presumption that it will not be criminally altered, all any !personhas to take the pap.er on th'e presumption that it has not been." To the same effect is the case of Knoxville Nat. Bank v.Olarke, 51 Iowa, 264, [So C. 1 N.W. Rep. (N. S.) 491,] in which it was held that where a negotiable note tor ten dollars was executed with a blank preceding the amount, and afterwards the words "one. hundlied and'1 were fraudulentlY.inserted before the word "ten," and. tMre was nothing in the note to excite suspicion, and it was subsequently transferred to the innocent holder, the latter could notrecover on the' note; In the case of Wood V. Steele",6 WillI. 80, the euit was upon a promissory note, which aft!:lr its delivery had, without the assent of the the maker, been .altered by 'a.ltering ;the. date of. its maturity.. ,The court held that the alteration tbfl liability of the maker, and. remarked: "Th(l,,(iefendant could. no more alteration than he could have prevented a l;tnd he had as little reaS!Outo anticipate the one a,s,the othel'o; The.law regards the security, after it is altered. as an entire forgery, with respect to the parties who have not consented, and, so. far as they.ar!:l concerned, deals with it
These citations show the drift of'American authorhy on the question, and t.hey are not opposed by any English decision, In the case of Young v. Grote, 4 Bing. 253, S. C. 12 Moore, 484, the drawer had left with his wife checks signed by himself in blank, and the fraudulent alterations were made by his clerk, who was directed by his wife to fill out the check, and it having been found by an arbitrator that the maker had been guilty of gross negligence by causing his check to be delivered to his clerk in such a state that the latter could, and did by the mere insertion of additional words, make it appear to be his check for a larger sum, it was held by the court that he could not recover that sum from his banker, who had paid it. The ground upon which this decision rests is that the check was drawn in so negligent a way as to facilitate the forgery, and to exonerate the banker from liability to his customer from paying the amount that the latter, as it seems, gave authority to the party to fill up the check in the way it was filled up. Bee Robarts v. Tucker, 20 L. J.(N. S.) Q. B. 270; 16Q. B. 560; But this case is clearly distinguishable from the case of promissory notes above cited. (1) The relation of the maker of a promissory note and the indorser is entirely different, from that held by a customer to his banker. The contract of the banker with his customer is to bonor the latter's checks, and if the negligence of' the customer affords opportunity to the clerk or other person in his employ to add to the terms of a check, and thereby mislead the banker, the customer is held liable to the banker. .(2) There was no alteration of the check after it left the hands of the drawer's agents. The alteration was made by the banker's own , agents, to whom he had entrusted his blank checks. We may, then, take it as settled that when the maker of a note uses a printed blank, and fills in the amount for which he intends to become liable, leaving a vacant space to the left of the amount, in which, after the note has been put in circulation, words are fraudulently inserted, which increases the amount of the note, the liability of the maker upon the note is extinguished, and no recovery can be had therein against him. (3) This rule should apply with greater force to bills of lading, which are not negotiable commerci.al paper in the sense of bills of exchange or promissory'notes. The conclusion is therefore inevitable that no suit could have been maintained by the plaintiffs, the consignees, on the bills of lading
LEHMAN V. CElNTRAL
mentioned in "the complaint. If that be true, is" there ground lor holding the defendant liable for its alleged, negligence in filling up the bill of lading? Because, by the negligence charged, Johnson could the more easily commit the" crime of" forgery, is the defendant to be held civilly liable for the consequetlCe of that crime? Ifa. grantor leaves a blank in a deed, of which the grantee takes advan, tage by inserting words, which increases the amount of land which the deed purports to oonvey, and thereby cheats and defrauds a,"8ub· sequent grantee, is first grantor liable for the damages sustained by the last grantee? To ask the question is to answer it. No one is bound to presume that the parties with whom he deals are ready to commit crime, or is bound to take precautions to prevent it. "Is it not a rule that everyone has flo right to suppose that a crime will not be committed, and to act on that belief?" "D. J., in Baxendale v. Bennett, note to Knoxville Bank v. Cla/rke,33 Am. Rep. 137. In writing promissory notes ltnd bills of :tading and other contracts which are to pass into the hands of others" every one hasa right to presume that the eriminallaws of: theJand will,protect the paper from felonious alteration, and if crime is noti thus re,straine<l he cannot be held civilly liable for the resultiJ;lg daIllagea, "A failure to take all precautions topreventtb,e felonious alteratio;u o,f a tract in writing, is not negligence. The maker of thepaperbas the right to presume that no such alteration will I nmtherefore of opinion that the leaving of a blaIl:J intbe bill of lading filled up by ,John.son, does not make defendant liable for the damages resulting irom Johnson's forgery. Here is another ground on which we think the demurrer ought to be sustained. Before the making of the bills of lading there were business relations between the plaintiffs and Johnson. The complaint shows that the plaintiffs had given him a letter of credit, the plain purpose of which was to enable "himto:buy cotton to be consigned to the plaintiffs, and, the fair presumption is that the object of the arrangement was' gain to both parties. Pursuant to their undexsta:rding Johnson buys ingto draw a bill on the plaintiff for the purpose of paying for it, or other cotton to be shipped 'to them, he delivers the cotton t(} defendant, and takes a bill of lading for it, by the termsofwhichWis to be . , . delivered to the plaintiffr, as consignees. He thereby tramafers the title of the cotton to the plaintiffs. Now, if not the agent of the'plaintiffs in this transaction, he is their business" associate and ciuitonieri To "hold qompany to lihEl plaintiffs 'fqr
resulting from a. crime committed by their own customer in conducting the enterprise in which both were interested, because the company fail to suspect that the customer would commit a. felony, and did not take precautions to prevent it, is to push the liability of a common carrier beyortd that authorized by any adjudicated case, or by reason or justice. The plaintiffs trusted to:Johnson to send them fair and honest bills of lading. It was they who confided in him. If he has defrauded them, they must look to him, and cannot ·shift the responsibilityupon another party, which has Men guilty of neither crime nor fraud, n6:r of any such negligence as oan be considered the cause of their loss. Lastly': The damage sustained by plaintiffs must be attributed to the proximate and not to the remote Their loss was the direct result of the forgery committed by Johnson. Even on the theory of the plaintiffs, the negligence of the defendants preceded the forgery by Johnson and·sfforded·the facilities for committing it. The plaintiffs cannot, therefore, charge their loss to the negligence of the. defendant, which is the remote, and pass over the forgery of Johnson, which is its proximate cause. Knoxville Nat. Bank v. Clarke, 51 Iowa, 254; Cuff v. Newark It N. Y. R. Co. 85 N. J. (L. R) 1; Byles, J., in Richardson v. Duinn, 8 B. (N. 8.) 665; Denny v. N. Y. Cent. R.Oo. 13 Gray, 481; Morrison v. Davis, 20 Po.. 171; Railroad Co. v. Reeves, 10 Wall. 176. We are of opinion, therefore, that the facts stated in the complaint do not constitute a cause of action in favor of the plaintiff against the defendant. The demurrer must therefore be sustained.
(OircuiC (Jou,rt, D. OolO'l'ado. June, 1882.)
NEGLIGENCE-CoNTRmUTORy-M.A8TlIlR AND SERVANT.
If a master or another servant, standing towards the servant injured in the relation of superior or vice-principal, orders the latter into a situation of danger, and he obeys and is thereby injured, the Jaw will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. 2. SnlE.......A QUESTION OF FACT. If the circumstances be such that men of ordinary intelligence may honestly differ as to the question of negligence,it must be left to the jury.