880
FEDERAL REPORTER,
vol. 42.
of the V'alidating act above quoted. is not in point. There it appears the was against the stockholders. We think the injunction heregranted should be made perpetual, and it is so ordered. HUGHES,
J., concurs.
CoUHERClAL NAT. BANK OF CINCINNATI tI. HAMILTON NAT. BANK OF FT. WAYNE. (Ol,rcuU Oourt, D. Indiana; July 15,1890.) . ' "An'indorsee for collection for account ofa prior indorsee for collectloD is liable to the owner of the draft for the amount collected, and not remitted to the owner or " the, indorsee, though credit fOl,' the amount was, given the latter. and he " cb.arge<lthe Collector, and credited the owner. and was oharged for the same byth,e , , , owner, Bnd though the collector, by virtue of an agreement with ite indorser,' "whereny the amollDt,due irom' one to the other for collections was to be placed to the latter's oredit with a certain bank, wrote to that bank to place the amount to the, credit of the prior indorsee. which order it could have coulltermanded after no "tiW,()f tbe latter's , , ' ANt> BANXING-COLLEOTIONs-,PAYMENT·
.At Law. ' Lawrence Maxwell and Morris &; Barrett, for plaintiff. ' /Jell « Morris. for defendant. , GRESHAM, J. In April. 1884, the plaintiff sent to Fletcher & Sharp, banker$ at Indianapolis, a draft indorsed: "Pay to the order of Fenton. ,for, collection, on account of Commercial Bank." Fenton was Fletcher &Sha;rp'scashier, and the draft was sent to them in pursuance of an arrangement 'entered into in 1883. whereby Fletcher & Sharp were to make collections for the plaintiff, and remit balances on the 1st and 15th of each month. Fletcher & Sharpindorsed the draft: "Pay to the order of John Mohr, Jr., cashier, or order, for collection, for account of Fletcher & .sharp."......,and sentitto the defendant, whose cushier JohnMohr was, at Ft. Wayne. The defendant collected the draft on July 10, 1884. and the same day credited Fletcher & Sharp with the proceeds, 83,497.49, and advised them ofthe fact. On receipt of this advice. July 11th. Fletcher & Sharp charged the defendant, and credited the plaintiff, with the amount, and notified the latter. This notice was received by the plaintiff July 12th, when it charged Fletcher & Sharp. On July 15th the ,defendant posted a letter'at Ft. Wayne,addressed to Winslow. Lanier &00., bankers at New York. directing them to credit Fletcher & Sharp with' the amount collected; At thistime, and for several years previous, the defendant and Fletcher & Sharp had made collections for each other under. an arrangement whereby any. amount due from one to the other was placed to the latter's credit with Winslow, Lanier & Co·· with which banking firm both kept accountsjbut the plaintiff had no knowledge of
COMMERCIAL NAT. llANK V. HAMILTON NAT. BANK.
881
this arrangement. The defendant in good faith directed that the credit be given to Fletcher & Sharp in New York, not knowrng that they were indebted to Winslow, Lanier & Co. Fletcher & Sharp failed, and ceased to do business, on July 14th, which failure was announced in the evening papers of Ft. Wayne the next day, after banking hours, not, however, until hiter the defendant had posted the letter of instruction to Winslow, Lanier & Co. This letter was received in New York on July 17th. The defendant knew of the failure of Fletcher & Sharp on July 16th; and, although it had ample time to have done so, it failed to countermand the order sent by mail to the New York banking firm. On July 25th 'the plaintiff addressed a letter to the defendant, claiming the collection, and demanding that it be remitted. The demand was refused, and this suit was brought to recover the amount. The indorsement to Fletcher & Sharp "for collection" authorized them and their, indorsee to collect the draft fer the owner, the plaintiff. Fletcher & Sharp received the draft for collection, and for no other purpose, and the restrictive character of the indorsement informed the defendQ;nt that the title remained in the plaintiff, and that it would own the proceeds when collected. The defeudant became a mere subagent of the plaintiff for collection, with no more right to pay the proceeds to Winslow, Lanier & Co. than Fletcher & Sharp would have had if they had made the collection. Fletcher & Sharp acquired no property in the draft, and they passed none to the defendant. The defendant, as subagent or trustee of the plaintiff, was bound to send the proceeds tl;> it directly, or through Fletcher & Sharp. It did neither. The defendant claims that the placing of the amount of the collection to the credit of Fletcher & Sharp on the books of Winslow, Lanier & Co., the charging of the same amount against the defendant by Fletcher & Sharp, the crediting by them of the plaintiff with a like amount, and the charging of Fletcher & Sharp by the plaintiff, amounted to a payment by the defendant to the plaintiff, through Fletcher & Sharp; that the defer dant should net be required to pay the money again; and that the draft and its proceeds were, in all respects, treated in accordance with long and well established custom and usage among banks and bankers. The plaintiff's indorsement upon the draft was plain, and its legal force cannot be defeated by resort to usage or custom, or by any method of bookSweeny v. .Easter, 1 Wall. 173; Bank of the Metropolis v. First Nat. Bank oj Jersey City, 19 Fed. Rep. 303; Bank v. Armstrong, 39 Fed. Rep. 684; First Nat. Bank v. Reno C\). Bank, 3 Fed. Rep. 257; Blainev. Bourne, 11 R.1. 119; Bank v. Hubbell, 22 N. E. Rep; 1031; Pars. Notes & B. § 143. In discussing the effect of indorsements of this character, the supreme court, in White v. Bank, 102 U. S. ((58, said: indorsement is without ambiguity, and needs no explanation, either by parol proof. or by resort to usage. The plain meaning o.f it is that the j¥lceptor of the draft is to pay it to the indorsee for the use of the Indor<\er. The indorsee is to receive it on account of the indorser. It does not purport to transfer the title of the paper, or the ownership of the money when received. Both these remain, by the and almost nee ,
v.42F.no.15-56
882
essary meaning of the language, in the indorser. "'. '" '" If this be a sound view of the legal elIect of the written indQl"semenliJ neither parol proof nor .customcan be received to contradict .it."
Instead of sending the money directly to th,eplaintiff, or through Fletchel' & Sharp,the defendant sent it to Winslow, Lanier & Co., in .New York, not for the plaintiff, but to the credit of: Fletcher & Sharp. It was a violation of the plain terms of the plaintiff's indorsement to thus treat the draft and its proceeds as the property of :Jj'letcher & Sharp. Thf;l·defendant sent no money to New York to becredi,ted to Fletcher & Sharp. It simply instructed Winslow, Lanier & CO' I by,letter, to charge it, and .credit Fletcher & Sharp with an amount equal to the collection; and, if the letter of instruction left Ft.: Wayne before the defendant knew of the failure of Fletcher & Sharp, the defendant."knew of the failure in ample time to have sent a dispatch countermanding the instruction. 'Finding and judiment for the plaintiff fortheaQlountcollected, with interest.
",;
Ii
lV.,D.,7'6:z:a8, BrawnsmHB DiWWR. 1.
Ju0818,1890.)
AG4INSTELEOTiON. LAWS-INDIOTMkNT· .,'. ., 'Rev; St; U. So §551i5;:l,roVides that every officer of anelectlotifor congressman wh9 neglects or refUSEls,t.o pE\l'form any d?ty in regard election required of hlni :bylaw, or who violates any duty so Imposed, or who knowingly does any acts thereby unauthorized,' 'With intent to ·aifeot any sllohelection, shall be punished. Held, tllat an indiotlD,ent charging that the defendants J;Ilem1;lers of the. county commissioners' court, "unlawfully, ,{raud1,1lently, corruptly, .and feloniously, It suppressed the return' of: certlaiilballots, Without charging that the offense was comand l without setting outtheaots Which COlllitituted auch suppreSSIOn, is fatally defeotIve.. " UndellReV. ,St. Tex. art. 1705, which· requires thecounty:commissioners' court to "open the.eleotion returns. and estimate the result, recording the state of the. polls In eaoh preoinot, " an indictment against the members of suoh court whioh oharges that the defendants did'lunlawfully, fraUdUlently, oorruptly, and feloniously negleot and refuse to receive, estimate, and count all.the ballots voted and returlled to them, It does not charge any oifense; their duty blling confined to the return", and having: no connection .with the ballots. ' The omission in such an indiotment to allege affirmatively that the election returns delivered to the commissioners' court is a fatal defeot.. ' '.
II. SUnil.
"
a.
SAME.