Langenberger v. Krœger

By the Court, Crockett, J.: The defendant, residing at Anaheim, made and delivered to one Smith, for the plaintiffs, a draft on Leopold Kahn, of San Francisco, for six hundred and twenty-two dollars, payable to the order of the plaintiffs, but specified no particular kind of money in which it was to be paid. On receiving the draft, Smith, without the authority of the defendant, and so far as the evidence shows, without the knowledge or authority of the plaintiffs, wrote across the face of. it in red ink, the words “payable in United States gold coin.” The Court finds, that on receiving the draft at San Francisco, the plaintiffs presented it to Kahn, and demanded payment in gold coin, which he refused; but ten[149]dered payment in silver coin, which the plaintiffs declined to accept. Thereupon the draft was delivered to a notary, who presented it to Kahn for payment, which was refused, and the draft was protested, of which the defendant was duly notified. There is nothing to show that payment was tendered to the notary in silver or currency, nor any direct evidence that he demanded payment in gold. All the direct evidence in respect to the demand and protest by the notary, is contained in his official certificate, in which he states that he demanded payment, and that it was refused.

The action is to recover the amount of the draft, and a judgment having been entered for the defendant, the, plaintiffs appeal.

There was no evidence as to the nature or extent of Smith’s agency for the plaintiffs; nor any tending to prove that when they presented the draft for payment and demanded gold, they had any notice or information that the words across the face of the draft were written without the authority of the drawer. In the absence of all proof on the point, it cannot be inferred that Smith was acting within the scope of his agency, in writing these words across the draft; and the plaintiffs are not bound by or responsible for his unauthorized act, unless they subsequently adopted and ratified it, with a knowledge of all the facts; and there was no proof of such ratification. It was, therefore, the unauthorized act of a stranger, having no interest in the transaction, and did not vitiate the draft. But in order to hold the drawer, it was incumbent on the plaintiffs to make a proper demand of payment, and to give due notice of non-payment. As the draft specified no particular kind of money in which it was payable, it might have been paid in legal tender notes; and it was not competent for either of the parties to prove by parol, that it was understood and agreed that it should be paid either in gold of silver. To admit such evidence, would be to contradict or vary the written instrument; and proof of a mercantile usage cannot supercede a positive rule of law. The drawee was, therefore, at liberty to pay the draft in legal tender notes; and if the plaintiffs demanded payment in gold only,