« ForrigeFortsett »
dents with the amount thereof; that to be seriously contended that the by the negligence of the plaintiff, in Texas Banking and Insurance Comfailing to inform defendant that the pany was guilty of any negligence in check was raised, all remedy against the manner of drawing the genuine Wallace had been lost, and that by check No. 364, though there is some this negligence, and by its acceptance, evidence in regard to the utility of a plaintiit was estopped. It was also perforating instrument in preventing alleged that the drawer of the check the successful alteration of checks. had been guilty of a negligence in fail There was a verdict and judgment ing to use a perforating instrument, for the plaintiff, from which the dethen used by bankers.
fendant appealed. There was no evidence that the Held, The general rule is that interchange of monthly accounts was money paid under a mistake of fact adopted for the purpose of detecting may be recovered back, and that, too, forgeries or alterations, or that there although the party may have had the was any custom of bankers to refer to means of knowledge. such accounts before paying the checks On general principles mere negliof their correspondents, though one gence in making the mistake is not witness said as a matter of prudence he sufficient to preclude the party making would do so.
it froin demanding its correction. Such Everett, a member of the firın of C. negligence does not give to the party R. Johns & Co., testified that they receiving the payment the right to were first advised of the check being retain what was not his due, unless he raised by letter from the cashier of the has been misled or prejudiced by the City Bank on April 11; that he at mistake. If the loss had been incurre ! once commenced search for Wallace, and become complete before the paybut did not find him. Had he been ment, he should not in justice be perpromptly advised of the forgery, thinks mitted to avail himself of the mistake he could have overtaken or found of the other party to shift the loss Wallace. If he had been telegraphed upon the latter. ahead twenty-four hours, don't think In this case it is evident that the loss Wallace could have got out of the had been incurred by Johns & Co. State without his catching him; con. when they purchased the raised check siders his recovery from Wallace en- from an irresponsible party. The subtirely lost.
sequent mistake of the plaintiff, in There is no other evidence whatever, paying this altered check to the deas to damage resulting from the delay fendant, the agent of Johns & Co., to discover and give notice of the for- should not serve to shift the loss, unless gery, unless it be the statement of the the defendant or Johns & Co. had been cashier of Johns & Co., that he paid damaged in some way by the laches of Wallace $2,000 for the check; that plaintiff, or unless there is some rule of Wallace was introduced by a person law prohibiting the latter from setting whom he believed responsible ; thought up the mistake. hey would have recourse on him; but If the forgery had been in the signadid not know that the money could be ture of its correspondent, it is well made out of him. It does not appear settled that there is a rule of law for
bidding the bank from setting up such the will, and before the attestation a mistake. In such a case the mistake
clauses, in a blank in the last clause is covered by a failure on the part of the
of the will appointing the executor, bank to fulfil its acknowledged duty
the signature will be regardeil as a
signing at the end of the will, ac—that is, to know the signature of cording to the provisions of the its correspondent or customer.
statute. But it is now also settled that this Appeal from a decree of the surrorule does not apply to altered or raised rogate of New York county, refusing checks; as to which the acceptor or to admit to probate a paper alleged to drawer is not presumed to be better be the last will and testament of John able than the endorser to detect the Kelly. The alleged will presented for alteration.
probate was partly written and partly If the plaintiff is estopped in this printed. The last sentence, or clause case, it is not because of any rule of the will, before the attestation peculiar to the mercantile law, but clause, read as follows: “Likewise I because the facts bring the case within make, constitute, and appoint Edward the general principles of estoppel. It McCarthy to be executor. J. Kelly, of is true there are early authorities which this my last will and testament, hereby hold a party paying a forged draft to revoking all former wills by me made." great dilligence in giving notice. The The will had no other subscription by modern doctrine is believed to be, that alleged testator, John Kelly, except in as against one who passes a forged bill a blank in the printed clause, after the or check, and especially in favor of a attestation clause, which clause made a drawee who pays to such party on the declaration of facts, intended to show faith of his endorsement, and in so the proper execution of the will, and doing violates no obligation or duty, began as follows: “ Subscribed by reasonable dilligence is all that can be Jolin Kelly, the testator named in the required, and when that is exercised foregoing will, &c." and no damage has resulted from the From the evidence taken before the delay, the right to recover is not lost. surrogate, it appeared that the testator Judgment affirmed.
said to the witnesses, taking a paper Opinion by Gould J.
from his pocket, I have drawn a will, or,
I have made my will, and I want you WILLS. ATTESTATION OF.
to witness it. The second signature of N. Y. SUPREME Court, GENERAL TERM the testator, John Kelly, in the blank First DEPARTMENT.
between the words “subscribed” by and The Sisters of Charity of St. Vincent “the testator” was made after the atde Paul, appltx, v. Mary Kelly, Ann testing witnesses had signed their Malony, and Margaret Doolan, respts. names to the will, and was thus made Decided May 5th, 1876.
after, and not before, he had pronouncThe attestation clauses to a will in the ed the will to be his, and after he had
precise form provided by statute, are requested the persons present to witness not essential prerequisites to its val. it. The first signature, J. Kelly, was illity, nor is the clause declaring the selection of the esecutor.
on the will when the witnesses were reWhere the signature of the testator quested to sign the paper. The quesoccurs after the disposing clause in tion presented on the appeal was,
whether the will was signed at the end LIFE INSURANCE. AGENCY. within the meaning of the statute reg
REPUDIATION. ulating the execution and attestation of N. Y. SUPREME Courr. Ger’ı Teru, wills. (2 R. S., 63, Part 2, chap. vi.,
THIRD DEPARTMENT. art. 3, § 10.)
Howell, respt., v. Charter Oak Life
Ins. Co., applt.
Decided May, 1876.
cations for life insuranc does not can be regarded as at the end, then the
give rim authority to collect premirequisition of the statute is complied with. The object to be accomplished | The principal has a reasonable time to by the statute was to prevent any inter repudiate the acts of an unauthorpolation, or change, or addition, to the
ized agent, even if the death of the
insured intervenes, and he need not testamentary part of it. Such a form
tsnder back the premium received by ality was not required at common law. such an agent. If he notify the Tonnella v. Hall, 4 Coms., 145, per Jew agent of his dissent to his acts he ett; 1 Jannan on Wills, Perkins' ed., need not notify the insured. 114, and notes.)
The policy was issued by the general The attestation clauses in the precise agent of defendants, one Stocker, and form provided by statute are not essen- delivered to the deceased, who resided tial pre-requisites (Conboy v. Jennings, at Watkins, in February, and remained 1 Sup: Ct. Repts., 622; nor is the clause in his possession until his death, April declaring the selection of the executor. 27, following. It was delivered to him
The law supples theiomission of the to examine, to determine wliether he testator to name his executor by ap- would take it. No premium was pad pointing one with the will annexed. then. One Stone, an agent of detendThe signature J. Kelly was
in- ant, gave to C., in April, verbal, and tended to be that of the testator to his afterwards, and after April 18, written will, and his intention should not be authority to solicit applications in cerfrustrated by the accidental selection of tain towns other than Watkins. C., a locality to sign it, which, though with knowing the insured to be dangerously in the spirit is not expressly within the sick, requested H. to get the premium
H. dic so, and gave it letter of the statute. (In the goods of of the insured. H. did Woodby, 3 Law. Tr., 429.)
to C., April 17. C. wrote to Stocker, The disposing clauses of the will all who refused to receive the premium, occurred before the signature J. Kelly, and the defendant, on being notified, and what occurs after might be reject- also refused. The premium was returned as surplussage. The decree of the ed to the plaintiff in this action, for surrogate should therefore be reversed, whose benefit the policy was issued. the will admitted to probate, and letters May 6, C. testified on the trial that he testamentary issued to the executor was not agent for the defendant for named.
Watkins, nor was he such in suggesting Opinion by Brady, J.; Davis, P.J., to H. that the premium be paid. and Daniels, J., concurring.
McGuire, for pltff.
solicit applications for an insurance did to other parties, and endorsed by them not give him authority to collect pre- to the plaintiff before suit. They were miums; at any rate not on policies not endorsed and delivered to ihe plaintiff issued through him. He was a mere under an arrangement, in substance, volunteer, and C. being unauthorized to that he should go from New Albany, receive the premium, the defendant was Indiana, to the city of New York and entitled to a reasonable time to repudi. collect the notes if possible, and then ate his acts, even though the death of account to the respective endorsers for the insured intervened. Where a pay- the proceeds of the notes, over and ment depends for its validity on subse above their respective shares of plainquent acts ratifying it, it is for the plaintiff's expenses and the expenses of coltiff to show such ratification. The lection. principal should notify the unauthor The obvious intention of the owners ized agent of his dissent, but need not of the notes was to put them into the notify tbe third party. Even if he hands of the plaintiff, so that he could ought to notify the third party, the in- bring a single action in his own name sured, he ought to have a reasonable upon them all, and after cullection des time to do so. If the agent was unau- duct a pro rata share of his expenses in thorized, the principal need not tender coming to New York and of the exback the money.
penses attending the collection from New trial ordered, costs to abide the the proceeds of each note, and pay over event.
Opinion by Learned, P. J.; Bockes the residue to the endorsers. and Boardman, J.J., concurring.
The only question in the case was
whether this made plaintiff a party inPARTY IN INTEREST. terested, so that he could maintain an N. Y. SUPREME Court. GENERAL TERM action on the notes in his own name. FIRST DEPARTMENT.
Wm. Man, for respt.
George II. Foster for aplt.
Held, The legal title of the claim A plaintiff has a sufficient interest to sued upon is very clearly vested in the
sustain an action upon several promis plaintiff. He could receive payments, sory notes endorsed to him for the purpose of collection, such endorse give receipts, discharge the indebtedments being made upon the under-ness, and in the proceeds he would have standing that plaintiff' would collect a personal interest, as he was only the notes if possible, and then ac- bound to account tor an uncertain balcount to the respective endorsers for ance after deducting his expenses and the proceeds of the notes over and the costs of proceedings for the collecabove their respective shares of plaintion. We think plaintiff had sufficient titt's expenses, and the expenses of collection,
interest to maintain this action, and Appeal from judgment entered on that this case comes within the princiverdict for plaintiff.
iple of Allen v. Brown, 44 N. Y., 228; This action was brought upon a draft Eaton v. Alger, 47 N. Y., 345. and several notes. In respect to the
Judgment should be affirmed. draft, no defence was made at the trial.
Opinion by Davis, P. J.; Brady The several notes were originally made
and Daniels, J. J. concurring.
MONDAY JUNE 5, 1876.
NEW YORK WEEKLY DIGEST. agreed between them that that amount
should be liquidated in the following
manner: £2,400 was to be paid by NazPRINCIPAL AND SURETY. RE-arkiewich to the plaintiffs on or before
LEASE OF SURETY BY SUR- the 15th of February, 1874; and RENDERING COLLATERALS. £6,000 was to be paid in fully paid up ENGLISH HIGH COURT OF JUSTICE,
shares, or share warrants in “ E. NazarQUEEN'S BENCH DIVISION.
kiewich & Co." within three days af
ter the first allotment of shares in that Polak v. Everett.
company, which Nazarkiewich was Decided February 10, 1876.
to redeem within twelve calendar The fact that a surcty stands by and months from the first of January, 1874;
of something, which will discharge him and the redemption was to be guaranfrom his contract, without declaring teed by the defendant. that he shall consider himself dis It was also agreed that the book chargeil if the act is done, does not debts of Nazarkiewich should be colestop him from setting up and relying lected by one Vispe, on behalf of upon such act as a discharge. ile is not bound to warn the parties of the Messrs. Tampier, of Bordeaux, and the consequences of the alteration of the plaintiffs, to be divided equally between contract.
them as collected; the amount paid to Any intentional act which materially the plaintiff's being applied towards rechanges the contract without the suredemption of the £6,000 of shares. ty's consent will discharge him, whether it was for his benefit or not, On the same day the defendant signand even though he might have sus- ed a written gnarantee to the plaintiff's
tained only nominal damages. for the fulfillment by Nazarkiewich of A surety is discharged by the credit the above agreement "so far only as
or relcasing a security in his hands for the principal debt, though it does concerns the full redemption of the not go to cover the whole of that debt, shares and share-warrants therein men and the creditor allows the surety the tioned of the value of £6,000 on or bea whole value of the security.
fore the 1st day of January, 1875." This was an action on a guarantee en
The first allotinent of shares in E. Naztered into under the following circum. arkiewich & Co. took place on the 18th of tances :
February, 1874, but the £65,000 worth The plaintiffs are wine merchants of shares
transferred by carrying on business in the city of Lon- Nazarkiewich to the plaintiffs within don, and the defendant is a discount three days after that event. broker in business in the same city. In May and June, 1874, negotiations
In 1873, one Etienne Nazarkiewich were carried on between the plaintiff's, had arranged to dispose of his business Nazarkiewich, and a Mr. Asser, one of as a wine merchant to a limited liability the directors of E. Nazarkiewich & Co., company, to be called E. Nazarkiewich for the repurchase by Nazarkiewich of & Co. (Limited.)
the plaintifi’s share of his book delts, At that time he was indebted to the and the transfer of them by hivi over to plaintiffs in the sum of £8,400; and on the company, and on the 1st of July, the 20th of December, 1873, it was 1874, the plaintiff's gave à receipt tu