« ForrigeFortsett »
7. BILLS AND NOTES 416-PRESENTMENT- of dishonor to an agent of indorser, whose au-
thority was limited to sell and collect, was not
ITY OF AGENT-USE OF PRINCIPAL'S NAME
FOR PRIVATE ADVANTAGE.
An agent cannot take advantage of his posi-
[Ed. Note.-For other cases, see Principal and
Agent, Cent. Dig. $$ 130, 131; Dec. Dig. Ons
If the bank upon which the check is drawn 16. PRINCIPAL AND AGENT 123(9) - AU.
Evidence held insufficient to show express
[Ed. Note. For other cases, see Principal and
Appeal from Circuit Court, Knox County;
Action by George S. Miller against Swift
Clarence B. Kessinger, of Vincennes, for
FELT, J. This suit was brought by appel-
lee, Miller, against appellant, Swift & Co.,
Co., and indorsed as follows: “Pay to Mil-
As between the holder of a check and an to state a cause of action was overruled.
nial. A demurrer for insufficiency of facts
amended third and fifth paragraphs of an-
Delay of seven days in presenting check for ment for appellee for the amount of the
and to each amended paragraph of answer
Answer of indorser, alleging delay of sey- tion for a new trial.
time the checks sued on were drawn, appel-
city of Vincennes, Ind., and was also a sub-
HONOR-SUFFICIENCY OF NOTICE TO AGENT and sometimes did business for the compa-
ny under the name of "Miller Brothers."
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
trought orders from appellee for the purposes once, without delay" (Webster's Dictionary),
L. N. Elson." Among the overruling the demurrer thereto.
The fourth paragraph of answer, in sub Appellant's memoranda accompanying stance, alleges: That L. N. Elson was the the demurrer to the complaint is denominated agent of appellant in Vincennes, Ind., to sell "argument," and is assailed by appellee as its products and collect for the same. That insufficient to present any question under appellant provided said Elson with a stamp the sixth clause of section 344, Burns 1914 in form as follows: "Pay to
or order Statutes. The memoranda is subject to criti. for exchange, payable to Swift & Company. cism, but, looking to its substance rather Swift & Company, by -" That said than its form, we think it substantially stamp was furnished for the sole and only meets the requirements of the statute, not purpose of enabling said Elson to indorse withstanding the misleading and erroneous checks of appellant received in payment of appellation given to it. The substance of the its products for exchange payable to appelmemoranda is that the complaint seeks to lant. That appellant knew that such was hold appellant liable as an indorser; that the extent of Elson's authority, and that he as an indorser it is entitled to all the rights had no right or authority to indorse his own and defenses authorized by the common law checks with such stamp, and appellee acceptand commercial usage as the same have beened the checks in suit with full knowledge enacted into the statutes of our state (sec- thereof, and with knowledge of the fact that tion 90S9a et seq. Burns 1914); that the com- Elson had no funds in the bank upon which plaint does not show due diligence on the the checks were drawn out of which the part of appellee when the checks were dis- checks could be paid, but accepted the same, honored, in the giving of notice to appellant; intending thereby to seek to hold appellant that the complaint does not show that appel- liable for the amount. lant was notified within the time prescribed The amended fifth paragraph of answer al. by the statute.
leges, in substance, that the check for $244  The complaint charges that the checks set forth in appellee's complaint was receiv were duly presented for payment, and the ed by appellee on September 11, 1913, and bank on which they were drawn refused pay- the check for $552.24 on October 13, 1913. ment, and that "he *
thereupon no- that both of said checks were drawn by L tified the indorser, Swift & Co.,
of N. Elson in manner aforesaid ; that without the refusal of said bank to pay said checks any authority so to do said Elson indorsed and each of them.” The word "thereupon" said checks in the name of appellant; that signifies that the bank was "immediately, at each of said checks was drawn upon the Ger
man National Bank of Vincennes, Ind., which In order, therefore, that the authority to make bank refused payment of the check for $244 or draw, accept and indorse, commercial paper on September 18, 1913, and of the latter some other express authority, it must be shown
be check on October 14, 1913; that appellee to be strictly necessary to complete execution of knew that Elson indorsed the check in the the express power. And the execution and nename of appellant without its consent or au- gotiation of commercial paper are considered
by the commercial world so liable to infliction thority, and failed to notify appellant, such of injury on the principals. if this authority is alleged indorsee, of the dishonor of said given to agents-the general custom being to rechecks until November 22, 1913; that appel- serve this power for personal exercise-that the lant did not know, prior to the receipt of presumption of the law is more strongly opposed
to an implied authority to execute and negosaid notice that said checks had been so tiate commercial paper than to do anything else. drawn and indorsed by said Elson.
Hence, in this connection, the rule is strictly Two principal questions are discussed. enforced that the authority to execute and in
dorse bills and notes as agent will not be imThe first is that of Elson's authority to in- plied from an express authority to transact dorse his own checks by use of the stamp some other business, unless it is absolutely necfurnished him by appellant, and thereby bind essary to the exercise of the express authority." appellant as indorser. The second is that of The rule above announced was approved timely notice to appellant as indorser, if it in Hamilton National Bank v. Nye, supra, be held to be indorser.
and is well supported by authority. In DanIt is also suggested that appellant is liable iel on Negotiable Instruments, vol. 1, § 290, as a maker. This contention is not even it is said: plausible, for the whole theory of the case is "The authority to bind the principal in a that appellant is liable as Indorser. On the certain character on a negotiable instrument
cannot be construed as an authority to make the theory of the complaint and the facts of the principal a party in any other character. Thus case, appellant is not llable at all unless li- authority to draw a bill is not of itself authorable as indorser of the checks sued upon.
ity to indorse one, nor to accept one; nor  There is no claim that Elson as agent accept a bill; nor to make a several or joint
does authority to indorse imply authority to had any express authority so to do, and the note. So it has been considered that authority question turns upon the implied authority to draw a bill upon the principal does not imply that may be inferred from his power to authority to the agent to draw in his own name,
be sell appellant's goods and collect therefor from refusing payment by having paid previousand the fact that he was furnished with ly a bill so drawn.” the aforesaid stamp by appellant. The au In Stainback v. Bank of Va., supra, it was thority of an agent to sell goods and collect held that: therefor does not confer on him implied au
“A power of attorney to draw, indorse, or acthority to bind his principal by the separate, cept bills, and to make and indorse notes, neoriginal and independent contract of indorse- gotiable at a particular bank, in the name of
the principal, in the absence of anything to ment.
show a different intention, must be construed This proposition of law has been applied as giving authority to act only in the separate in this state in the case where the agent, individual business of the principal. And an inauthorized to sell and collect, received a of his principal, for the benefit of the agent, is
dorsement of a bill by the agent, in the name check payable to his principal, for the goods beyond his authority, and does not bind the prinsold, and, without any authority other than cipal.” his power to sell goods and collect therefor,
In Myers v. Walker Bros. & Co., supra, the indorsed the check by writing on the back Supreme Court of Georgia say: thereof, and received in person the amount of "It is well settled that a mere general power the check. Hamilton National Bank v. Nye, to indorse promissory notes does not confer 37 Ind. App. 464-467, 77 N. E. 295, 117 Am. upon the agent authority to make an indorse
." St. Rep. 333; Runyon v. Snell, 116 Ind. 164 ment for the accommodation of third persons. 167, 18 N. E. 522, 9 Am. St. Rep. 839; Black
In Pluto Powder Co. v. Cuba City State well v. Ketcham, 53 Ind. 184-186; Robinson Bank, supra, the Supreme Court of Wisconv. Anderson, 106 Ind. 152–155, 6 N. E. 12; sin considered a case where the agent had Knowlton v. School City, etc., 75 Ind. 103- power to sell and collect, and general con107; Stainback v. Bank, etc., 11 Grat. (Va.) trol of his principal's business, and author269; Myers v. Walker Bros. Co., 104 Ga. 316, ity to employ help, in a certain locality. In 30 S. E. 842; Pluto Powder Co. v. Cuba, etc., passing upon the question of such agent's auBank, 153 Wis. 324-329, 141 N. W. 220; Wal- thority to indorse a check made payable to lace v. Bank, 1 Ala. 505; German Nation- his principal, the court, among other things, al Bank V. Studley, 1 Mo. App. 260-264; say: 1 Daniel, Neg. Inst. 8 290. Tiedeman on Com
"We think the great weight of authority is mercial Paper, 77, is in part as follows:
to the effect that upon the undisputed evidence
in this case Robinson had no authority, express "We have this general rule that applies to all or implied, to sign the name of plaintiff to necases of implied agencies, that no authority will gotiable paper. In the instant case the defendbe implied from an express authority, unless it ant cashed the checks drawn payable to plainis positively needful for the performance of the tiff upon the unauthorized signature by Robinmain duties contemplated by the express author- son of the name of plaintiff. • * The bank ity. Whatever powers are strictly necessary therefore became liable to the plaintiff, the to the effectual exercise of the express powers funds having been misappropriated by Robinson. will be conceded to the agent by implication. * Since no express authority was given
Robinson to indorse 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 indorse it.” [5, 6]. From the foregoing it is clear that Elson had no authority to indorse his own checks, 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. Swift & Company, by .” The language used imposed a very clear limitation upon the use of the stamp. It indicated that obligations payable to Swift & Co. might be indorsed by using the stamp, but only for the purpose of securing “exchange payable to Swift & Company.” Such stamp, in the hands of appellant's agent, having authority to sell, collect, and remit, cannot reasonably be construed as implying authority to indorse the agent's personal check made payable to his principal, even though exchange be procured by the use of such check. 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 National Bank v. Hartman, 109 N. E. 846; Wagner v. McCool, 52 Ind. App. 124–134, 100 N. E. 395. The principle involved here was applied in Runyon v. Snell, 116 Ind. 164, 167, 18 N. E. 522, 523 (9 Am. St. Rep. 839), where Mitchell, J., 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 his principal.” Appellant's agent had no authority to use the stamp to make appellant his accommodation indorser, or to use it in any way except for the purpose of indorsing checks or obligations, payable to appellant from customers or other third parties, to enable him to proCure exchange and remit to his principal. While the third and fifth paragraphs of amended answer contain averments of lack of authority of the agent to indorse the Checks in Suit, such averments 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 not receive due and timely notice to bind it as an indorser of the checks sued upon. Section 9089K3, Burns' St. 1914, provides that:
“When a negotiable instrument has been dishonored by nonacceptance or nonpayment, no- . tice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.”
The Uniform Negotiable Instruments Act further provides as follows (section 9089 y?):
“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, * * * 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.”
“Where the person giving and the person to receive notice reside at different places, the notice must be given within the following times: 1. If sent by mail, it must be deposited in the post office 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 the next mail thereafter. 2. If given otherwise than through the post office, then within the time that notice would have been received in due course of mail, if it had been deposited in the post office within the time specified in the last subdivision.”
Section 9089s3 provides that: “Notice of dishonor may be given either to the party himself or to his agent in that behalf.” Section 9089C7: “A check is a bill 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 check.” Section 9089S2:
“Where [the instrument] is payable on demand, presentment must be made within 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 9089 r2:
“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 indorsers.”
The gist of the third paragraph of amended answer is that appellant as indorser 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. Our Uniform. Negotiable Instruments Act (section 9089n'7, Burns 1914) provides that:
“In any case not provided for in this act the rules of the law merchant shall govern.”
The statute (section 9089s2) 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 the bank upon which the check is drawn is at another 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's Negotiable Instrument Law, § 186, p. 248; De Houst v. Lewis, 128 App. Div. 131, 132, 112 N. Y. Supp. 559; Wood's Byles, Bills and Notes (8th Ed.) p. 19 et seq.; 5 Cyc. p. 531 et Seq.  As between the holder and 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. [10, 11] As between the holder of a check and an indorser, unreasonable delay in presentment for payment, or in giving notice of dishonor, will discharge the indorser from his liability without regard to whether such delay did or did not occasion loss to the holder. Gordon v. Levine, 194 Mass. 418–421, 80 N. E. 505, 10 L. R. A. (N. S.) 1153, 120 Am. St. Rep. 565, 10 Ann. Cas. 1119; First National Bank v. Currie, 147 Mich. 72, 110 N. W. 499, 9 L. R. A. (N. S.) 698–701, 118 Am. St. Rep. 537, 11 Ann. Cas. 241; La Follette Coal, etc., Co. v. Whiting, etc., Co., 25 Ind. App. 647–649, 57 N. E. 255, and cases cited; Carroll v. Sweet, 128 N. Y. 19–22, 37 N. E. 763, 13 L. R. A. 43; Aebi v. Bank, etc., 124 Wis. 73–78, 102 N. W. 329, 68 L. R. A. 964, 109 Am. St. Rep. 925; De Houst v. Lewis, supra, 128 App. Div. 132, 112 N. Y. Supp. 559; Com. Nat. Bank v. Zimmerman, 185 N. Y. 210–218, 77 N. E. 1020; Little v. Phenix Bank, 2 Hill (N. Y.) 425; Dolon v. Davidson, 16 Misc. Rep. 316–318, 39 N. Y. Supp. 394; Murray v. Judah, 6 Cow. (N. Y.) 484– 490; First National Bank v. Miller, 37 Neb. 500, 55 N. W. 1064, 40 Am. St. Rep. 499–503; Stevens v. Park, 73 Ill. 387–388; Smith v. Janes, 20 Wend. (N. Y.) 192, 32 Am. Dec. 527; 2 Randolph on Commercial Paper, $ 1106; 2 Daniel on Negotiable Instruments, $ 1586 to 1601, inc.; 5 Cyc. p. 532, and cases cited; Tiedeman on Commercial Paper, $ 442. Joyce on Defenses to Commercial Paper in Section 585 says: “An indorser 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 indorser only, such check must be presented for payment within a reasonable time. * * In order to charge an indorser upon a check or inland bill of exchange payable on de
mand, 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 check 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 3 R. C. L. § 446, p. 1224, it is said:
“The distinguishing feature of the liability of an indorser 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 of 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 indorser 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 indorser would have a right to conclude either that the note was not paid, or that the holder was satisfied to look alone to the maker for payment. Nor are the rights of the indorser 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 fail to perform this duty to give timely notice of nonpayment, the law presumes injury to the indorser, 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 W. Levine, Supra, the Supreme Court of Massachusetts say (194 Mass. 421, 80 N. E. 506, 10 L. R. A. [N. S.] 1153, 120 Am. St. Rep. 565, 10 Ann. Cas. 1119):
“‘In determining what is a “reasonable time”
or an “unreasonable time” regard is to be had to the nature of the instrument, the usage of trade of business, if any, with respect to such instruments, and the facts of the particular case.’ This, however, would not seem to lay
down or to establish any new rule. The nature of the instrument and the facts of the particular case 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 a 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 afterwards, 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 in considering the liability of an indorser of a check, Say:
“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 nonpayment. Smith v. James, 20 Wend. [N. Y.] 192 [32 Am. Dec. 527].