President Directors Company of the Bank of the United States v. President Directors Company of the Bank of the State of Georgia
ERROR to the Circuit Court of Georgia. This was an action of assumpsit, brought by the plaintiffs in error, the President, &c. of the Bank of the United States, against the defendants in error, the President, &c. of the Bank of the State of Georgia, in which the plaintiffs declared for the balance of an account stated, and for money had and received to their use. At the trial, the plaintiffs offered evidence, to prove, that mutual dealings existed between the parties, in the course of which, each being in the receipt of the bills of the other, they mutually paid in or deposited the bills of the other party, at intervals, as each found the bills of the other party had accumulated to any considerable amount in their respective vaults; and upon each of such payments or deposits, the amount thereof was entered as so much cash in the customer's book of the party depositing, by the proper officer of the Bank receiving the same; from which said book of the plaintiffs, which was given in evidence, it appeared that the sum of 6,900 dollars was the balance due from the defendants to the plaintiffs, at the time of instituting this action. The plaintiffs also offered evidence, that the transactions between the parties were almost exclusively in the deposits of their respective bills as aforesaid. And the defendants, to maintain their said defence, offered evidence to prove, that in one of the said deposits so made by the plaintiffs, in the bank of the defendants, and so entered in the said book of the plaintiffs by the proper officer of the defendants, at the time the said deposit was made, to wit, on the 25th of February, in the year 1819, and which is one of the items comprised in the account upon which the balance was claimed by the plaintiffs, there were paid in 38 bills of the defendants' own issues or notes, of 5 dollars each, which had been fraudulently altered by some person or persons unknown, from the denomination of 5 to that of 50; and 40 bills of the defendants' own issues or notes of 10 dollars each, which had in like manner been fraudulently altered by some person or persons unknown, to that of hundreds, making together the sum of 5,900 dollars, demanded by the plaintiffs in this action; which said bills or notes had been subsequently tendered by the defendants to the plaintiffs, before the institution of this action, and by the plaintiffs refused. The plaintiffs then offered evidence to prove that no notice or intimation of the said fraudulent alteration aforesaid was given by the defendants to the plaintiffs, until the 16th of March, 1819, and that the tender to return the said altered notes to the plaintiffs by the defendants, was not made until the 17th of March, 1819, nineteen days after the receipt of the said notes by the defendants from the plaintiffs, and the entry of the same in the customer's book of the plaintiffs. The defendants further offered evidence to prove, that the said altered bills, so deposited by the plaintiffs and received by the defendants, had been received by the plaintiffs from the Planters' and Merchants' Bank of Huntsville, concerning which notes a correspondence had taken place between the plaintiffs and the said Planters' and Merchants' Bank of Huntsville, subsequently to the detection of the said fraudulent alteration, in the following words and figures, to wit:
OFFICE BANK U. STATES,
Savannah, 17th of March, 1819.
EDWARD RAWLINS, Esq.
Cashier P. and Merchants' Bank of Huntsville.
SIR-Upon a more minute investigation of the bills received last month from Mr. Hobson, of your bank, it turns out that 40 of the 100 dollar notes of the State Bank of this place, were altered from 10 dollars, and 58 of the 50 dollar notes of the same bank were altered from 5 dollar notes, producing against us a difference in the 100 dollar notes of 3,600 dollars, and in the 50, 2,610 dollars, making the whole difference 6,210 dollars. By the person which we shall in a few days send to your place, as heretofore intimated, we will forward these altered bills for the purpose of getting you to exchange them for other money.
ELEAZAR EARLY, Cashier.
P. S. Herein I enclose, for your future security, the official notice of the banks of Georgia, pointing out the difference between the genuine and altered bills.
E. E. Cashier.
OFFICE BANK U. STATES,
Savannah, 25th March, 1818.
LE ROY POPE, Esq.
President Bank Huntsville.
SIR-Will you suffer me to introduce to your acquaintance and kindness, the bearer, Mr. Heinemann, our teller, whose objects have already been imparted to you in my letters of 23d February, and 13th inst. (copies in Mr. H.'s possession,) and which, we doubt not, will receive every facility from your institution. Mr. Heinemann is also instructed to lay before you formal notice of a claim which we shall make on your bank for the spurious notes received from Mr. Hobson, in the event of our being cast in the suit about to be brought between the Bank of Georgia and ourselves in the case. It has been deemed a better course than that proposed in our Cashier's letter to Mr. Rawlins, your Cashier, of the 17th inst. and will, no doubt, be more agreeable to you,
Your obedient servant,
R. RICHARDSON, President.
PLANTERS AND MERCHANTS' BANK OF HUNTSVILLE, 4th May, 1819.
SIR-Your favour under date of the 25th, has been handed me by Mr. Heinemann, wherein you give me notice, that your bank holds this institution bound to make good the amount of the spurious notes which you say was received from Mr. Hobson, in the event of your being cast in a suit about to be brought between the Bank of Georgia and yourselves. I am directed by the Board of Directors to state to you, that they highly approve of the course your bank have adopted in regard to these spurious notes, and we shall cheerfully acquiesce with the decision of the Court, let that be what it may.
I am, respectfully,
Your obedient servant,
LE ROY POPE, President.
R. RICHARDSON, Esq.
President Office Bank United States, Savannah.
And the plaintiffs further offered evidence to prove, that the officers of the defendants, at the time of receiving the said altered notes, had in their possession a certain book, called the bank note register of the said Bank of the State of Georgia, wherein were registered, and recorded, the date, number, letter, amount, and payees' name, of all the notes ever issued by the said bank, by means of which, and by reference whereto, the forgeries or alterations aforesaid could have been promptly and satisfactorily detected; and further, that so far as related to the said notes purporting to be the notes of 100 dollars, all the genuine notes of the defendants of that amount in circulation on the said 25th of February, 1819, were marked with the letter A., whereas twenty-three of the notes of 100 dollars each, so received by the defendants as genuine notes, when in fact they were altered notes, bore the letters B., C. or D.
And the defendants further offered evidence to prove, that the alteration in the said notes consisted in extracting the ink of certain printed figures and words which expressed the amount of said notes, and substituting therefor other printed figures and words; the signatures, and every other part of said notes, remaining unaltered. Whereupon, the parties having offered the above evidence, the plaintiffs prayed the Court.
1. To instruct the jury, that if they believed the said evidence, the said plaintiffs were entitled to recover of the said defendants the whole sum of 6,900 dollars, being the balance so exhibited by their customer's book aforesaid, and as due from the said defendants to the said plaintiffs; which instruction the Judges aforesaid, being divided in opinion, refused to give; and the counsel for the plaintiffs excepted to the refusal.
2. The plaintiffs prayed the Court to instruct the jury, that if they believed the evidence so given, the plaintiffs were entitled to recover of the defendants the sum of 690 dollars, being the original value of the altered notes; which instruction the said Judges, being divided in opinion, did not give; to which refusal the said counsel for the plaintiffs excepted.
3. The plaintiffs prayed the Court to instruct the jury, that if they believed the evidence so given, the plaintiffs were entitled to recover of the defendants the whole sum of 6,900 dollars, being the balance so exhibited by their customer's book aforesaid, as due from the defendants to the plaintiffs, with legal interest thereon from the day of instituting their action aforesaid; which instruction the Judges aforesaid, being divided in opinion, refused to give; to which refusal the counsel for the plaintiffs excepted.
Judgment being rendered upon this bill of exceptions, for the defendants in the Court below, the cause was brought, by writ of error, to this Court.
It was insisted, on the part of the plaintiffs, that the judgment ought to be reversed, on the following grounds:
1. That what took place on the 25th of February, 1819, between the parties, was not only equivalent to payment, but was payment itself; and the defendants are, in all respects, to be considered as if they were suing to recover back the money.
2. That if understood only as an acceptance, or agreement to pay, the principle would still be the same.
3. That, in either case, the plaintiffs were entitled to recover. March 14th.
Mr. Justice STORY delivered the opinion of the Court.
^a He cited Bolton v. Richards, 6 Term Rep. 139. The Manhattan Company v. Lidig, 4 Johns. Rep. 377. Levy v. Bank of United States, 4 Dall. Rep. 234. S.C.. 1 Binn. Rep. 27. Chitty on Bills, 483. Smith v. Chester, 1 Term Rep. 655. Bass v. Clive, 4 Maul. & Selw. 15. Master v. Miller, 4 Term Rep. 320. Barber v. Gignell, 3 Esq. N. P. 60. Jordain v. Lashbrook, 7 Term Rep. 604. Price v. Neal, 3 Burr. Rep. 1354. Jones v. Ryde, 5 Taunt. Rep. 488. Markle v. Hatfield, 2 Johns. Rep. 462. Gloucester Bank v. Salem Bank, 17 Mass. Rep. 33. Smith v. Mercer, 6 Taunt. Rep. 76. Meade v. Young, 4 Term Rep. 28. Jenys v. Fowler, 2 Str. Rep. 946.
^b He cited Gates v. Winslow, 1 Mass. Rep. 66. Meade v. Young, 4 Term Rep. 28. Kyd on Bills, 202, 203. Lambert v. Oakes, 1 Lord Raym. 443. Union Bank v. Bank U.S. 3 Mass. Rep. 74. 1 Johns. Cas. 145. 5 Johns. Rep. 68. 2 Term Rep. 366. Buller v. Harrison, Cowp. Rep. 565. Miller v. Race, 1 Burr. Rep. 457. 2 Evans' Pothier, 19. 495. Toby v. Barber, 5 Johns. Rep. 72.