Davis v. First National Bank of Fresno

HARRISON, J. In May, 1893, tbe plaintiff requested tbe defendant to easb a draft for seven hundred dollars which had been made on the Fourth National Bank of New York by the First National Bank of Bock Springs, in the state of Wyoming, in favor of Mrs. A. J. Minto, and indorsed by her to him. The plaintiff had arrived in Fresno from the east that morning, and, when asked by the cashier of the defendant if he could be identified by anyone, he replied that he was a stranger in Fresno and knew nobody there. The defendant declined to cash the draft, but offered to take it for collection if he could be identified. He said that he had done business with the bank that had made the draft, and that his signature was with that bank, and was told by the cashier that the draft could be sent there for identification of his signature, and, if found correct, could then be forwarded to New York for collection. The plaintiff said that he thought a draft on New York could be sent for collection without his being identified, but after some discussion, told the cashier: “You know more about it than I do, but I will leave it for collection,” and thereupon indorsed the draft and left it with the bank. The defendant sent the draft to Reck Springs for the identification of his signature, but after it was sent it was intercepted by some legal proceedings, the nature of which is not shown by the record, and was not collected or returned to the plaintiff. The present action was brought for the amount of the draft, which the plaintiff charges in his complaint was lost to him by reason of the negligence of the defendant. Judgment was rendered in his favor, and the defendant has appealed.

The basis of the defendant’s liability to the plaintiff for its failure to collect the draft is its negligence, and as this was an element in the plaintiff’s cause of action, it was incumbent on him to establish it. In mailing the collection the bank was acting as the agent of the plaintiff, and from the nature of the transaction was required to employ a subagent, and, as the agent of the plaintiff, was bound to exercise reasonable care and diligence, as well in the employ of its subagent as in the discharge of any other of the duties assumed by it. If in making the collection it followed the course usually taken by banks under similar circumstances it cannot be held to have been negligent. (Dorchester Bank v. New England Bank, 1 Cush. 177; Indig v. [602]National City Bank, 80 N. Y. 105.) To procure an identification of tbe plaintiffs signature was under the circumstances a reasonable step to take for the purpose of collecting the draft. It would have been futile for the defendant to send the draft directly to the drawee in New York for collection unless it would itself vouch for the 'genuineness of the plaintiffs indorsement, for it was not suggested by the plaintiff that the drawee knew his signature, and the drawee would have been authorized to decline payment unless the indorsement was in some mode shown to it to be genuine. The plaintiff was unknown to the defendant, told its officers that he was a stranger in Fresno and knew no one there, and, when told by them that they would not take the draft for collection unless he could be identified, persisted in leaving the draft with them for collection, but gave them no means of identifying him except through his signature with the bank at Bock Springs. Whether under these circumstances, the defendant was negligent in sending the draft to Bock Springs was therefore a question of fact which should have been submitted to the jury. The court, it is true, instructed the jury that: “If, through the negligence and fault of the defendant, the defendant has never returned to the plaintiff the draft handed to it, nor the proceeds thereof, the plaintiff has made out a prima facie case of negligence against the defendant.” This was, however, only a truism, and did not aid the jury in reaching a verdict. The court should have instructed them with reference to the evidence in the case, and whether, if any of the facts claimed thereby were established, they would constitute such negligence on the part of the defendant as would render it liable.