Swift & Co. v. Miller

¶1This suit was brought by appellee, Miller, against appellant, Swift & Company, to recover on two checks drawn by L. N. Elson on the German National Bank of Vincennes, Indiana, payable to the order of Swift & Company and indorsed as follows:

“Pay to Miller Bros. or order for exchange payable to Swift & Company.

Swift & Company by L. N. Elson.”

¶2Appellant’s demurrer to the complaint for in*315sufficiency of the facts alleged to state a cause of action was overruled. Appellant answered the complaint in five paragraphs, the first of which was a general denial. A demurrer for insufficiency of facts alleged to state a defense to appellee’s cause of action was sustained to each of the amended third and fifth paragraphs of answer. A trial by court resulted in a judgment for appellee for the amount of the cheeks. Appellant has separately assigned as error the ruling on the demurrer to the complaint and to each amended paragraph of answer aforesaid, and also the overruling of its motion for a new trial.

¶3The facts stated in the complaint are in substance as follows: At and prior to the time the checks sued on were drawn, appellee was engaged in the drug business in the city of Vincennes, Indiana, and was also a subagent for the American Express Company and sometimes did business for the company under the name of “Miller Brothers.” One L. 1ST. Elson was employed by Swift & Company to sell its goods in the city of Vincennes and to collect therefor, and he frequently bought orders from appellee for the purpose of remitting to appellant collections made by him in its business. In paying for such orders Elson gave to appellee money and checks. The checks were payable to appellant and were endorsed as follows: “Pay to Miller Bros., or order for exchange payable to Swift & Company (signed) Swift & Company, by L. N. Elson.” Among the checks given appellee were those in controversy, one for $244, dated September 11, 1913, and one for $552.24, dated October 13, 1913. A copy of each of said cheeks was filed with and made a part of the complaint. Appellee issued express money orders on the American Express Company payable to appellant for the amount of the checks and paid the company therefor. Thereafter appellee caused said *316checks to be presented to the bank on which they were drawn for payment and payment was refused. Thereupon appellee notified appellant of the refusal of the bank to pay the checks. On November 22, appellee again notified appellant in writing by registered mail. Appellee also demanded payment of each of the checks from L. N. Elson and payment was refused. Appellee thereupon notified appellant of the nonpayment of each of said checks, which demand and notice were made and given immediately after the bank had refused payment of each check. By reason of the facts aforesaid appellant is indebted to appellee in the sum of $796.24, which amount is due and unpaid.

¶41. *3172.*316Appellant’s memoranda accompanying the demurrer to the complaint is denominated “argument” and is assailed by appellee as insufficient to present any question under the sixth clause of §344 Burns 1914, Acts 1911 p. 415. The memoranda is subject to criticism, but looking to its substance rather than its form, we think it substantially meets the requirements of the statute, notwithstanding the misleading and erroneous appellation given to it. The substance of the memoranda is that the complaint seeks to hold appellant liable as an indorser; that as an indorser it is entitled to all. the rights and defenses authorized by the common law and commercial usage as the same have been enacted into the statutes of our State (§9089 et seq. Burns 1914, Acts 1913 p. 120 et seq.); that the complaint does not show due diligence on the part of appellee when the cheeks were dishonored, in the giving of notice to appellant; that the complaint does not show that appellant was notified within the time prescribed by the statute. The complaint charges that the checks were duly presented for payment and the bank on which *317they were drawn refused payment and that, “He …■ * thereupon notified the endorser, Swift & Company, … of the refusal of said bank to pay said cheeks and each of them.” The word “thereupon” signifies that the bank was “immediately, at once, without delay” (Webster’s Dictionary) so notified. There was no motion to make the complaint more specific, and as against the demurrer the complaint is not objectionable on the ground alleged and was not insufficient on any ground presented by the memoranda. . The court, therefore, did not err in overruling the demurrer thereto.

¶5As already shown, the first paragraph of appellant’s answer was a general denial. The second paragraph is drawn on the theory of fraud by appellant’s former agent, Elson, and appellee, in the drawing and acceptance of the checks in the manner aforesaid to procure the money from appellant. The third amended paragraph Of answer proceeds on the theory that the endorsement of the cheek for $244 in the manner aforesaid was unauthorized and that there was unreasonable delay in presenting the checks to the bank for payment. It alleges in substance that as to' that part of appellee’s complaint which seeks to recover upon the check for $244 dated September 11, 1913, appellee Ought not to recover for the reason that said check was endorsed by appellant to appellee on September 11,1913; that it was held by appellee for a period of seven days from that date before'the same was presented for payment to the bank on which it was drawn; and that this check was signed and endorsed by said L. N. Elson without the authority of appellant. The fourth paragraph of answer in substance alleges that L. N. Elson was the agent of appellant in Vincennes, Indiana, to sell *318its products and collect for same; that appellant provided said Bison with a stamp in form as follows:

“Pay to-or order for exchange, payable to Swift & Company.

Swift & Company.

By-.”

¶6That said stamp was furnished for the sole and only purpose of enabling said Elson to. endorse cheeks of appellant received in payment of its products for exchange payable to appellant; that appellant knew that such was the extent of Bison’s authority and that he had no right or authority to endorse his own checks with such stamp, and appellee accepted the cheeks in suit with full knowledge thereof and with knowledge of the fact that Elson had no funds in the bank, upon which the checks were drawn, out of which the checks could be paid, but accepted the same intending thereby to seek to hold appellant liable for the amount. The amended fifth paragraph of answer alleges in substance that the check for $244 set forth in appellee’s complaint was received by appellee on September 11, 1913, and the check for $552.24 on October 13, 1913; that both of said checks were drawn by L. N. Elson in manner aforesaid; that without any authority so to do said Elson endorsed said cheeks in the name of appellant; that each of said checks was drawn upon the German National Bank of Vincennes, Indiana, which bank refused payment of the check for $244 on September 18, 1913, and of the latter check on October 14, 1913; that appellee knew that Elson endorsed the cheek in the name of appellant without its consent or authority, and failed to notify appellant, as such alleged endorser, of the dishonor of said cheeks until November 22, 1913; that appellant did not know prior to the receipt of said notice that said checks had been so drawn and endorsed by said Elson.

¶7*3193. Three principal questions are discussed. The first is that of Elson’s authority to endorse his own checks by use of the stamp furnished him by appellant and thereby bind appellant as endorser. The second is that of timely notice to appellant as endorser, if it be held to be endorser. The third is that of due and timely presentment of the cheek for $244. It is also suggested that appellant is liable as a maker. This contention is not even plausible, for the whole theory of the case is that appellant is liable as an endorser. On the theory of the complaint and the facts of the ease, appellant is not liable at all unless liable as endorser of the checks sued.upon. Pattilo v. Alexander (1895), 29 L. R. A. 616, 621; Jaffray v. Krauss (1894), 79 Hun. (N. Y.) 449. There is no claim that Elson as agent had any express authority to so endorse bis own check, and the question turns upon the implied authority that may be inferred from bis power to sell appellant’s goods and collect therefor and the fact that he was furnished with the aforesaid stamp by appellant. The authority of an agent to sell goods and collect therefor does not confer on him implied authority to bindhis principal by theseparate, original and independent contract of endorsement. This proposition of law has been applied in this State in the ease where the agent authorized to sell and collect received a check payable to his principal for the goods sold, and without any authority other than his power to sell goods and collect therefor, endorsed the check by writing on the back thereof the name of his principal and thereby received in person the amount of the cheek. Hamilton National Bank v. Nye (1905), 37 Ind. App. 464, 467, 77 N. E. 295, 117 Am. St. 333; Runyan v. Snell (1888), 116 Ind. 164, 167, 18 N. E. 522, 9 Am. St. 839; Blackwell v. Ketcham (1876), 53 Ind. 184, 186; Robinson v. Anderson (1886), 106 Ind. 152, 155, *3206 N. E. 12; Knowlton v. School City, etc. (1881), 75 Ind. 103, 107; Stainback v. Bank, etc. (1854), 11 Va. (Grattan), 269; Myers v. Walker Bros. Co. (1897), 104 Ga. 316, 30 S. E. 842; Pluto Powder Co. v. Cuba, etc., Bank (1913), 153 Wis. 324, 329, 141 N. W. 220; Wallace v. Bank (1840), 1 Ala. 565, 571; German National Bank v. Studley (1876), 1 Mo. App. 260, 264; 1 Daniel, Neg. Inst. §290.

¶8Tiedeman on Commercial Paper, §77,isinpart as follows: “We have this general rule that applies to all eases of implied agencies, that no authority will be implied from an express authority, unless it is positively needful for the performance of the main duties contemplated by the express authority. Whatever powers are strictly necessary to the effectual exercise of the express powers, will be conceded to the agent by implication. In order, therefore, that the authority to make or draw, accept and endorse, commercial paper as the agent of another may be implied from some other express authority, it must be shown to be strictly necessary to the complete execution of the express power. And the execution and negotiation of commercial .paper are considered by the commercial world so liable to infliction of injury on the principals, if this authority is given to agents — the general custom being to reserve this power for personal exercise, — that the presumption of the law is more strongly opposed to an implied authority to execute and negotiate commercial paper than to do anything else. Hence, in this connection, the rule is strictly enforced, that the authority to execute and endorse bills and notes as agent will not be implied from an express authority to transact some other business, unless it is absolutely necessary to the exercise of the express authority.” The rule above announced was approved in Hamilton National Bank v. Nye, supra,and is well supported by authority.

¶9*321In Daniel on Negotiable Instruments, supra, it is said: “The authority to bind the principal in a certain character on a negotiable instrument can not be construed as an authority to make the principal a party in any other character. Thus authority to draw a bill is not of itself authority to endorse one, nor to accept one; nor does authority to endorse imply authority to accept a bill; nor to make a several or joint note. So it has been considered that authority to draw a bill upon the principal does not imply authority to the agent to draw in his own name; and that the principal would not be estopped from refusing payment by having paid previously a bill so drawn.” In Stainback v. Bank, etc., supra,it was held that: “A power of attorney to draw, endorse or accept bills, and to make and endorse notes, negotiable at a particular bank, in the name of the principal, in the absence of anything to show a different intention, must' be construed as giving authority to act only in the separate individual business of the principal: And an endorsement of a bill by the agent in the name of his principal, for the benefit of the agent, is beyond his authority,, and does not bind the principal.” In Myers v. Walker Bros. Co., supra, the Supreme Court of Georgia says: “It is well settled that a mere general power to endorse promissory notes does not confer upon the agent authority to make an endorsement for the accommodation of third persons.” In Pluto Powder Co. v. Cuba, etc., Bank, supra, the Supreme Court of Wisconsin considered a ease where the agent had power to sell and collect, and had general control of his principal’s business, with authority to employ help, in a certain locality. In passing upon the question of such agent’s authority to endorse a check made payable to his principal, the court, among other things, said: *322“We think the great weight of authority is to the effect that upon the undisputed evidence in this case Robinson had no authority, express or implied, to sign the name of plaintiff to negotiable paper. In the instant case the defendant cashed the checks drawn payable to plaintiff upon the unauthorized signature by Robinson of the name of .plaintiff. … The bank therefore became liable to the plaintiff, the funds having been misappropriated by Robinson. … Since no express authority was given Robinson to endorse or sign negotiable paper on behalf of plaintiff, such power must be shown to be necessary to the exercise of the power conferred, and the burden was upon the defendant to show implied authority. … Third persons having notice that they are dealing with an agent are bound to inform themselves of the extent and limitations of his authority. … The mere fact that Robinson had authority to receive negotiable paper in payment for goods sold carried with it no power to endorse it.”

¶10From the foregoing it is clear that Elson had no authority to endorse his own cheeks, payable to appellant, in the manner shown, unless such authority under the rules of law applicable thereto, can be inferred from the possession of the aforesaid stamp and the language impressed upon it, viz.:

“Pay to-or order for exchange, payable to Swift & Company. 4

Swift & Company.

By-.”

¶114. *3235.*322The language used imposed a very clear limitation upon the use of the stamp. It indicated that obligations payable to Swift & Company might be endorsed by using the stamp, but only for the purpose of securing “exchange payable to Swift & Company.” Such stamp in the hands of *323appellant’s agent having authority to sell, collect and remit, can not reasonably be construed as implying authority to endorse the agent’s personal check made payable to his principal, even though exchange be procured by the use of such cheek. Such use of the stamp by the agent was not necessary to the proper and complete exercise of the power actually conferred upon Elson as appellant’s agent. The limitations of authority shown by the stamp itself were sufficient notice to appellee to put him upon inquiry as to the extent of such agent’s authority and any reasonable inquiry of appellant would have revealed the lack of authority on the part of Elson to make such use of the stamp. In this situation the burden was on appellee to show the requisite authority and there is nothing shown beyond the facts already indicated. Bright Nat. Bank v. Hartman (1916), 61 Ind. App. 440, 109 N. E. 846; Wagner v. McCool (1912), 52 Ind. App. 124, 134, 100 N. E. 395. The principle involved here was applied in Runyan v. Snell (1888), 116 Ind. 164, 18 N. E. 522, 9 Am. St. 839, where Mitchell, J. (p. 167) said: “There is no presumption that an agent, with authority to sell and accept payment for his principal, is authorized to receive in payment notes of which he is the maker, nor can he be presumed to have authority to accept the notes, of third persons in payment of purchase-money due to his principal.’’ Appellant’s agent had no authority to use the stamp to make appellant his accommodation endorser, or to use it in any way except for the purpose of endorsing checks or obligations payable to appellant from customers or other third parties to enable him to procure exchange and remit to his principal.

¶12While the third and fifth paragraphs of amended answer contain averments of lack of authority of the agent to endorse the checks in suit, such aver*324ments seem to be only incidental to the main tenor of such pleadings. The third paragraph purports to be a partial answer only showing undue delay in presenting the check.for payment. The fifth paragraph of amended answer counts upon the fact that appellant did notreceive due and timelynoticetobind it as an endorser of the checks sued upon. Section 9089k3 Burns 1914, Acts 1913 pp. 120,135, provides that: “When a negotiable instrument has been dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each endorser, and any drawer or endorser to whom such notice is not given is discharged.” The Uniform Negotiable Instruments Act, §9089y3, supra, Acts 1913 p. 136, further provides as follows: “Where the person giving and the person to receive notice reside in the same place, notice must be given within the following times: 1. If given at the place of business of the person to receive notice it must be given before the close of business hours on the day following. 2. If given at his residence, it must be given before the usual hours of rest on the following day.” Section 9089z3, supra, provides that: “Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times: 1. If sent by mail, it must be deposited in the postoffi.ce in time to go by mail the day following the day of dishonor or if there be no mail at a convenient hour on that day, by mail the next thereafter. 2. If given otherwise than through the postoffice, then within the time that notice would have been received in due course of mail, if it had been deposited in the postoffi.ee within the time specified in the last sub-division.”

¶13Section 9089s3, supra, provides that: “Notice of dishonor may be given either to the party himself or to his agent in that behalf.” Section 9089c7, supra, *325Acts 1913 p. 149, provides that: “A cheek is a hill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a cheek.” Section 9089s2, supra, Acts 1913 p. 132, provides that: “Where it (the instrument) is payable on demand, presentment must be made within a reasonable time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.” Section 9089r2, supra, “Presentment for payment is not necessary in order to charge the person primarily liable on the instrument. … But except as herein otherwise provided, presentment for payment is necessary to charge the drawer and endorsers.”

¶146. *3267. 8. 9.*325The gist of the third paragraph of amended answer is that appellant as endorser of the check for $244 is not liable thereon because appellee held the same for seven days before presenting it to the bank on which it was drawn for payment. Appellee resided in the city of Vincennes in which city the bank was located. The Uniform Negotiable .Instruments Act (§9089n7 Burns 1914, Acts 1913 p. 150) provides that: “In any case not provided for in this act the rules of the law merchant shall govern.” The statute §9089s2, supra, provides that an instrument payable on demand must be presented within a reasonable time after its issue. Under the rules of the law merchant, a check must be presented within reasonable time after it is received. Under ordinary conditions when the holder resides at the place the check is made payable, such reasonable time for presentment includes all of the banking hours of the day immediately following the day on which the check is received. If *326the bank upon which the check is drawn is at anpther place the check must be forwarded to the place of payment on the next business day, and be presented not later than the day immediately following the day of its receipt at the place of payment. Crawford, Negotiable Instrument Law §186, p. 248; DeHoust v. Lewis (1908), 128 App. Div. 131, 132, 112 N. Y. Supp. 559; Wood’s Byles, Bills and Notes (8th ed.) 19 et seq., 5 Cyc 531 et seq. As between the holder and the drawer of a check delay in presentment will not ordinarily discharge the drawer from liability, but if loss results from the delay for which the drawer is not responsible, the delay is at the peril of the holder. As between the holder of a check and an endorser, unreasonable delay in presentment for payment, or in giving notice of dishonor, will discharge the endorser from his liability without regard to whether such delay did or did not occasion loss to the holder. Gordon v. Levine (1907), 194 Mass. 418, 421, 80 N. E. 505, 10 L. R. A. (N. S.), 1153, 120 Am. St. 565, 10 Ann. Cas. 241; First Nat. Bank v. Currie (1907), 147 Mich. 72, 110 N. W. 499, 9 L. R. A. (N. S.), 698, 701, 118, Am. St. 537, 13 L. R. A. 43; LaFollette Coal, etc., Co. v. Whiting Foundry, etc., Co. (1900), 25 Ind. App. 647, 649, 57 N. E. 255 and cases cited; Carroll v. Sweet (1891), 128 N. Y. 19, 22, 37 N. E. 763, 13 L. R. A. 43; Aebi v. Bank, etc. (1905), 124 Wis. 73, 78, 102 N. W. 329, 68 L. R. A. 964, 109 Am. St. 925; Dehoust v. Lewis, supra, p. 132; Commercial Nat. Bank v. Zimmerman (1906), 185 N. Y. 210, 218, 77 N. E. 1020; Little v. Phenix Bank (1842), 2 Hill (N. Y.) 425; Dolon v. Davidson, 16 Misc. Rep. 316, 318, 39 N. Y. Supp. 394; Murray v. Judah (1826), 6 Cowen (N. Y.) 484, 490; First Nat. Bank v. Miller (1893), 37 Neb. 500, 55 N. W. 1064, 40 Am. St. 499, *327503; Stevens v. Park (1874), 73 Ill. 387, 388; Smith v. Janes (1838), 20 Wend. (N. Y.) 192, 32 Am. Dec. 527; 2 Randolph, Commercial Paper §1106; 2 Daniel, Neg. Inst. §§1586,1601; 5 Cye 532 and eases cited; Tiedeman, Commercial Paper §442.

¶15Joyce on Defenses to Commercial Paper, §585, says: “An endorser of a check is not liable where presentment is not made in a reasonable time. Where the payee of a check becomes chargeable as an endorser only, such check must be presented for payment within a reasonable time. * … In order to charge an endorser upon a check or inland bill of exchange payable on demand, presentment must be made by the holder within a reasonable time after it comes into his possession. Where such reasonable time is not fixed by statute, then, in the absence of special circumstances of excuse, it is limited to the next business day, or if the bank upon which the check is drawn is at another place the cheek must be forwarded to the place of payment on the next business day, and presented at latest upon the day following its receipt at the place of payment.” In 3R. C. L., §446, p. 1224, it is said: “The distinguishing feature of the liability of an endorser of any negotiable paper is that such liability is contingent upon due presentment for payment and notice of dishonor. The rule is based upon the implied undertaking pf the indorsee that he will use due diligence in the prosecution of his demand against the maker; that he will present the paper for payment immediately upon its maturity, and will not, by his negligence, expose the endorser to a hazard of loss, against which he, in case of notice of dishonor, might be able otherwise to protect himself. Without such notice the endorser would have a right to conclude either that the note was paid or that *328the holder was satisfied to look alone to the maker for payment. Nor are the' rights of the endorser changed because he suffered no apparent damage by reason of failure to demand payment and give notice of dishonor to him within the required time-. If the holder failed to perform this duty to give timely notice of non-payment, the law presumes injury to the endorser, and discharges him. Neither justice nor convenience will admit of an inquiry, whether actual damage was sustained. It was formerly held that it was incumbent on the person insisting on the want of notice, or other omission, to prove that he had really sustained damage by laches of the holder; but it has been settled by later decisions that such damage is to be presumed.” In (Gordon v. Levine, supra,the Supreme Court of Massachusetts said: “‘In determining what is a “reasonable time” or an “unreasonabletime”regard is to be had to the nature of the instrument, the usage of trade or business, if any, with respect to such instruments, and the facts of the particular case/ This, however, would not seem to lay down or establish any new rule. The nature of the instrument and the facts of the particular ease have always been considered in passing upon the question of reasonable or unreasonable time. In deciding, therefore, whether this check was presented within a reasonable time, if presented on Friday, resort must be had to the rules which have been hitherto established in similar cases. And one of the rules which has been established is, that where the drawer and drawee and the payee are all in the same city or town, a check, to be presented within reasonable time, should be presented at some time before the close of banking hours on the day after it is issued, and that its circulation from hand to hand will not extend the time of presentment to the detriment of the drawer. If it is presented and paid *329afterwards the drawer suffers no harm. But if not presented and paid within the time thus fixed, and there is a loss it falls not on him but on the holder.” In Carroll v. Sweet, supra,the New York Court of Appeals,inconsideringtheliability of anendorser of a cheek, said: “The plaintiff on accepting the check assumed, as between himself and the defendant, an obligation to present the same to the bank for payment within the time prescribed by the law merchant, that is to say, not later than the next day after its date, and if refused, to protest the same and give notice of non-payment. (Smith v. Janes, 20 Wend. 192). It was not presented until the thirty-first of August, nine days after it was received by the plaintiff. The defendant was, by such delay, discharged from liability as endorser of the cheek, irrespective of any question of loss or injury. Presentment in due time, as fixed by the law merchant, was a condition upon performance of which the liability of the defendant as endorser depended, and this delay was not excused although the drawer of the check had no funds, or was insolvent, or because presentment would have been unavailing as a means of procuring payment (Mohawk Bank v. Broderick, 10 Wend. 304; Gough v. Staats, 13 id. 549). A different rule obtains as between the holder and drawer of a check. As between them presentment may be made at any time and delay in presentment does not discharge the liability of the drawer unless loss has resulted.”

¶16*33010.*329In First National Bank v. Currie, supra,the Supreme Court of Michigan said: “The undertaking of the endorser of a check is that, if not paid on presentation within a reasonable time, he will pay it, provided he is properly notified. Such reasonable time for presentation and demand for payment is admit*330ted to be within the day following the endorsement. The endorsee, as between himself and the endorser, undertakes to demand payment within the day following the endorsement, and, if payment is not made, to give due notice of dishonor. This is his sole duty, and he does anything else at his peril. 2 Darnel, Neg. Inst. (5th ed.) §1601; People, ex rel. Port Chester Sav. Bank v. Cromwell, 102 N. Y. 477, 4 N. E. 413. The fact that there are no funds in the account against which the cheek is drawn does not relieve the holder from presentation and notice of dishonor to the endorser, unless it appears that the endorser knew it. 2 Daniel, Neg. Inst. §1596; 1 Morse, Banks and Banking (4th ed.) §262 subd. 8. Nor are the right so the endorser changed because he suffered no apparent damage by reason of failure to demand payment and give notice of dishonor to him within the required time. Mohawk Bank v. Broderick, 13 Wend. (N. Y.) 133.” Following the statute and in harmony with the authority above indicated, we hold that a delay of seven days in presenting the check for $244-for payment was unreasonable, and that the court erred in sustaining the demurrer to the amended third paragraph of answer.

¶17*33111. 12. 13.*330The gist of the amended fifth paragraph of answer is that there was unreasonable delay in notifying appellant of the dishonor of both of the checks sued upon. The answer avers that appellant was not notified until November 22, after the dishonor of the checks on September 18 and October 14, 1913, respectively. The statute fixes the time for such notice. §§9089y3, 9089z3, supra. Appellee seems to rely on notice given to. Elson and appellant’s agent who succeeded him. We do not regard this argument as pertinent to the question of the sufficiency of the fifth paragraph of answer, further than the implied admission that the notice, on November *33122, was too late to bind, appellant as endorser. While under the statute notice of dishonor may be given to the principal oi\to “his agent in that behalf,” we hold that on the facts of this case, neither Elson nor the agent who succeeded him, was the agent of appellant” in that behalf. Under the law applicable to the case the delay in giving appellant notice as alleged discharged it from liability as endorser without regard to the question of damage caused by such delay. The court therefore erred in sustaining the demurrer to the amended fifth paragraph of answer. In this case our decission is strengthened by the principle that an agent can not take advantage of his position to use his principal’s name to his own private advantage. Furthermore the use of appellant’s name in the manner indicated in endorsing the agent’s personal check was sufficient notice to those accepting such checks that the agent was exceeding his authority, or at least it was sufficient to put such persons upon inquiry to ascertain the extent of his authority. Claflin v. Bank (1862), 25 N. Y. 293; Allen v. South Boston R. Co. (1889), 150 Mass. 200, 205, 22 N. E. 917, 5 L. R. A. 716, 15 Am. St. 185. In Claflin v. Bank, supra, the court in substance said: No officer of the bank was authorized to certify a cheek when there were no funds of the drawer to meet it. … Nor can any officer or agent of the bank certify his own cheeks; for no one acting in a fiduciary capacity as trustee or agent can employ his position for his own private benefit, and where the name of the officer who certifies the check is the same as the drawer, that circumstance is sufficient to charge all persons dealing with the cheek that they are the same person, and *332if such.- be truly the ease, and the cheek were improperly certified, no holder could recover. Under the alleged error in overruling appellant’s motion for a new trial the question is presented as to the sufficiency of the evidence to sustain the judgment. We have already indicated that Elson as agent had neither express nor implied authority to use appellant’s name to endorse his own checks, and that the stamp furnished him did not give him apparent authority so to do, but it clearly indicated a restriction or limitation of his authority in that behalf. 7 Cyc 806-807 and cases cited. Williams v. Potter (1880), 72 Ind. 354.

¶1814. There is therefore a total failure of evidence to show the agent’s authority to endorse the checks sued upon or to give him apparent authority to endorse his own checks in the name of his principal. The motion for a new trial should therefore have been sustained- upon the ground that the decision is not sustained by sufficient evidence and also on the ground that it is contrary to law. Our Uniform Negotiable Instruments Act' is sub stantially like those of many other states where such statutes have been in force for many years. Most of the cases cited are from states having such statutes and the decisions deal with questions involving the statute. The judgment is therefore reversed, with instructions to overrule the demurrers to each of the amended third and fifth paragraphs of answer, to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.

¶19Note. — Reported in 113N.E.447. See under (3),(4)2 C.J. 636; 31 Cyc 1373,1386;(8) 8 C.J. 545; 7 Cyc 979; (11)8 C.J. 653; 7 Cyc 977. Delay in presentment of check, release of endorser, 22 L. R. A. 785; 10 Ann. Cas. 1121; 10 L. R. A. (N. S.) 1153.