COOPER V. BANK oj? BR.iTISH 1\ORTH AMERICA.
171
CoOPER,
Jr., v.
BANK OF BRITISH NORTH AMERICA.
(OVreuit Oourt, S. D.NewYork. March' 9,1887.) CARRIERS-CONSIGNOR KNOWN TO BE OWNER OF GOODS CARRIED-RIGHTS OP CONSIGNOR.
Plaintiff, desiring to pay a draft which he had drawn on A. at Glasgow, 'Scotland, made an arrangement with the defendant bank by which it agreed to cable the money to London, and to forward it in the form of a check, through their London agent, from London to Glasgow, to A. Instead of do , ing this, defendant, without plaintiff's knowledge, paid the money over to a bank in London, to the credit of A., who failed and closed his doors the next day, being indebted to the London bank where the deposit was Ulade. Had defendant forwarded the money by check to A., as it agreed to do, he would have used it topll.Y plaintiff's draft. Held, plaintiff is'entitled to recover the amount ,from def\·ndant. Where a consignor is· known to the carrier to be the owner, the C8uier must be understood to contract with him only, for his interest, and upon the terms he dictates in regard to the delivery, and the consignees are to be regarded simply as agents selected to receive the money.
At Law. Motion for a new trial. This action is by William B. Cooper, Jr., to recover of the defendants the sum of £5,000, with interest, amounting in the aggregate to $28" 502.56. At the time ofthe transaction in question, in thespring of 1884, the plaintiff was a commission merchant in the city of New York. The defendants were engaged in the business ofbanking in the city of London_ with a briineh office in New York. During the same period, Maron, Turner & Co., of Glasgow, Scotland,. were in the East Indian trade,having a branch office in London. Their banking business was transacted at the Bank of Scotland, which also had a branch office in London. On the fourteenth of December;, 1883, the plaintiff It credit permitting him so to do, drew'a draft upon the Glasgow firm 'of Martin, Tumer& Co. for £5,000, payable in London to the order of himself. This draft was due February 29, 1884. It was the plaintiff's'duty to take it up at maturity. On the twenty-sixth of Febrllllryhe went to the office for the, defendants, in New York, and purchased a cable exchange fbr £5,000, which was sent by them to London, reaching there the next day, February 27th. The money waSon that day deposited il1' the Bank of Scotland, London, to the credit orMartin, Turner & Co. At the same time a dispatch was sent by the defendants, in London, to Martin, Turner & Co., at Glasgow, announcing that at that moment they were paying to their credit at the Bank of Scotland' the sum aforesaid. On the same day they wrote to the Glasgow firm that the amount had been paid to their credit. The letter reached Glasgow on the 'morning of the 28th. It is undisputed that if a draft had been inclosed, that also would have reached there at the same time. The payme,nt to the Bank of Scotland was made pursuant to written instructions received'by the: defendants, at London, from Martin, Turner & Co.. Upon'the 28th, Martin, Tumer & Co. having received advices from their East Indian correspondelits, became convineed that it was idlElfor them 'toconiinue longer ih business, and upon morning of the: 29th -they closed their
172
li'EDEIlAL REPORTER.
doors. The money was paid to the :Qank of Scotland without specifio instructions, and a general credit was given to Martin, Turner & Co. upon the books of the bank. The firm was indebted to the bank to a considerable and the money was retained to lessen this indebtedness. The plaintiff received 'no benefit from it. It was not used to take up the draft. The plaintiff insists that the money was lost to him by reason of the failure of the defendants to obey specific instructions given by him to. them 11 pon the. twenty-sixth of February. He testified . that he informed the agent of the defendants that the money which he was about to send to MarHn, Tu.rner & Co. belonged to him; that it was sent to take up a draft shortly ·to fall due; that he wished it sent by cable to London, and from thence by mail, in the form of a check, to Martin, TurnElr & Co., at Glasg'ow;and that the defendants agreed to these terms.· The defendants deny that any specific instructions Were given, Il.n,d insist,that the niODey was se1;1t in the usual waYj. and was paid to & Co., as direCted by them. If the ,money had been sent by mail, so that it could have been identified, it would have been applied by Martin, Turner & Co. to retire the plaintiff's draft. The jury werednstructed that the relation of principal and agent existed between ,the parties; that the pJaintiff had a right to presCl;ibe the manner in whic.1;l.his funds should be sent" aJld ,if the qefendants, knowing that tqeJunds his,and thatthey were transmitted for a special purpose, cOBtractedwith him to send them in a particular way, and loss occurred by their failure to keep that agreement, the plaintiff was entitled to recover. If, however, there waS, no. such agreement;.if the defendants did not that the money belonged to the plain1Jff, or that it was to be sent fora Ilpecificpurpose; if the ,circumstances were such that they hOO a right to"assume that it was the money of Martin, Turner & Co.; if, in other words, it was sent in. the usual course of business, without any particular the defendants were entitled to a ver(lict. The jury found for the plaintiff. ,,The defendants eJrcepted to the refusal orihe court to direct a verdict in their favor,and also to the fusal to charge that th,e money belonged to Martin, Turner & Co. as soon as it came under their control,and also to that portion of the charge where the jury were instructed, in substance, that if th!3Y found the agreement to, be. as stated in the .plaintiff's testimony he was entitled to recover. , The defenq.ants now move for a new t.rial upon the ground· that the plaintiff has no cause of action, ttIldthat the verdict is against the weight of evidence" John M. Bowers. for plaintiff. Stephen P. Nash, for
CoXE, J. The verdict of jury has settled the disputed question of fact. The plaintiff's version'of the transaction must be taken as the true one. The following facts are established: On the fourteenth of December, 1883, the plaintiff drew a for £5,000 on Martin, Turner & Co. ,of Glasgow, which matured ;February 29, 1884. It was his duty
the
CUTLER tl. LANG.
173
to take up thia draft. On the twenty-sixth of February, the defendants, knowing that the money handed them by the plaintiff belonged to him, and that it was sent to retire a draft, agreed with him to forward it by cable to London, and by mail, in the form of a check, from London to Marlin, Turner & Co., at Gla:sgow. Instead of doing this, the defendants l without the knowledge of the plaintiff, and contrary to his instructions, paid the money to the credit of Martin, Turner & Co. at the Bank of Scotland, in London. Had they performed their agreement, the money would have been saved by the plaintiff. As it was, it was lost to him. The question is whether upon these facts the plaintiff can recover. It is notnecesssary to enter, at this time, upon an extended discussion of the authOrities cited by counsel, for the reason that,upon the facts as stated, the case of Southern Ewpres8 Co. v. Dickson, 94U. S. 549, seerps to be controlling. It seldom happens that two cases ,are exactly parallel upon the facts. the Dickson Case the property in question was toba<;lco, and not m()ney, and it was to be sent by express, and not by telegraph and mllil. But it is difficult to perceive why. the· principle there announced is not applicable here. The instructions given to the jury in the two cases were substantially identical. The verdict in that case also was for the plaintiff, and upon the facts there found the supreme court' said: "We think the rule is that, where the consignor is known to the carrier to be the·owner, the carrier must be understood to contract with him only, for his interest, upon such tel'JllS all he dictatel:l in regard to the delivery, and that the consignees are to be regarded simply as agents selected by him to receive the goods at a place indicated... It is thought that the plaintiff is within this rule, l\nd that this court, as the law now stands, would not be justified in disturbing the verdict. The motion is debied. ;
l,'uTLER
and others .".
LANG.
«(J£rouie aom, D. NtIID
HampaMreo February 17, 1887.)
ATTA.CHMENT-DISSOLUTION B¥AMENDMENT.
An attachment is not dissolved by an amendment Of the writ and declaration inereasing the amount claimed. made after another attachment has intervened, where the first attaching creditor, upon obtaining judgment for the inereased amount and taking out exeeution, directs the sheriff to levy only for the amount originally claimed.
At Law. Bingham &; Mitchell, for plaintiffs. Mr. Barnard, for defendant. C()LT, J. This case was heard by the court; jury trial having been waived. It is an action on the case brought the <iefendant as
