Allen v. Merch. Bank of New-York. deceits, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify, or indeed know of such misconduct, or even if he forebade them or disapproved of them." Story on Agency, ch. 17, § 452, and authorities cited in note 3. "The maxim is," says Lord Kenyon, " Respondeat superior-The principals are responsible for the acts of the servants in those things that respect their duty under them, though not answerable for things that do not respect their duty." 8. T. R. 531. This rule sums up the dotrine with great force, clearness and precision. Thus the carrier is liable. for the negligence of his agent, by which goods committed to his care are damaged. So the ship ower is liable to the shipper for damages caused by reason of the neglect or misconduct of the master or mate. "This liability," says Judge Story, "extends not only to the injuries and wrongs of the agent immediately employed in a particular business, (as in this case to the Merchant's Bank itself,) but also to the injuries and wrongs done by others who are employed by that agent under him, or with whom he contracts for the performance of the business; the liability reaches through all the stages of the service." Story on Agency, § 454, and cases there cited in note. It is this distinction, on which I have already insisted as founded in the reason of contracts, between the undertaking to perform any thing, and the mere receiving a delegation of authority to act for another, which reconciles many decisions evidently equally just in themselves, but apparently clashing in words and conflicting in authority. I include among these, in addition to the class of cases already cited or referred to, those in which persons dealing or contracting with an agent or contractor, and trusting to his credit, have endeavored to charge his principal, with whom, however, they themselves had no privity; see for instance, the two cases in 6 Taunton, 147, 148. If it be not a mere representative agency, but a contract or undertaking to do the business, the original principal is answerable; and for the same reason he is too look to the immediate contractor with himself, and not to the inferior for Allen v. Merch. Bank of New-York. and distant under contractors or agents, for defaults injurious to his own interest. Such then being the general law, the bank, in undertaking to collect negotiable paper, is answerable for the neglect of its ordinary agents. Is there any thing in the mere fact of the paper being payable in another city, and therefore requiring the aid of other agents, sufficient to take that case out of the general rule? I mean irrespectively of any agreement or implied understanding as to the matter. The chief justice, in delivering the opinion of the supreme court, holds that there is, and says: "A note or bill left at a bank, and received for the purpose of being sent to some distant place for collection, would seem to imply, upon a reasonable construction, no other agreement than that it should be forwarded with due diligence to some competent agent, to do what should be necessary in the premises. The language and acts of the parties fairly import so much, but nothing beyond it. The person leaving the note is aware that the bank cannot personally attend to the collection, and that it must therefore be sent to some distant or foreign agent." This seems to me to assume the very question in dispute. In a deposite of a note for collection, payable in the same place, the holder is equally aware that the bank cannot personally attend to the collection, and its management must be left to some one or more competent agents. But he makes an implied contract with the bank that the proper and expedient means shall be used to collect his So he does as to a foreign debt; and in each case he alike presumes that proper agents will be employed. In neither case has he any knowledge of the agents, or privity with them. I can perceive no reason for liability or exemption from liability in either case which does not equally apply to the other. The bank, if its officers think fit, and the dealer will consent, may vary that liability in either case. It may receive the paper only for transmission to its correspondents. That would form a new and different contract, and would limit the responsibility to good faith and due discretion in the choice of an agent. But if this be not done, or unless there be some implied understanding on the sub note. Allen v. Merch. Bank of New-York. ject, I see no difference between the responsibility assumed in the undertaking to collect foreign bills, and that for collecting domestic paper, payable at home. It is assumed in the same manner, in the same words, and on the same consideration. If the reasoning of the supreme court be correct, I cannot perceive how, either in the case of domestic collection, or in any other case, the principal is to be made liable for the default of his own agent, if, from the nature of the business, it was evident that some under agent must be employed, and that the principal could not do the business without aid. On this principle, the ship owner would not be answerable for the negligence of the captain, whom all the world knows he must employ. The master mechanic who must (as those who contract with him are well aware) employ sub-contractors, journeymen and laborers, would no longer be liable for their negligence in the work he contracts to have executed. The same reasoning which would here make the New-York bank merely an agent "to select other agents abroad for the party to become his agents in the collection," would equally make the ship owner and the contracting builder mere agents to select masters, mates, journeymen and laborers for those with whom they deal. If it be "unreasonable" to suppose, as the chief justice holds, that the bank assumed "to become responsible for the fidelity of agents abroad," who "all parties knew must intervene before collection," and when the plaintiffs "knew that others must be trusted," it must be quite as unreasonable in the case of domestic collections, and of all other transactions, where the parties know that "agents must intervene and others be trusted." But in all these cases, the parties are not governed by the mere rule of personal representative agency, but are subject to the responsibilities. imposed by the law of commercial contracts, of bailment or of shipping. In all these cases, we are not too look to the necessity of the employment of the distant or under agents. We are to look to the contract itself. Legim enim contractus dat. We are to look whether the contract be only for the immediate services of the agent, and his acting faithfully as the representative of his principal, doing for him, in the VOL. XXII. 30 Allen v. Merch. Bank of New-York. business confided to his care, what the principal is not able or willing to do for himself, or whether the contract looks mainly to the thing itself to be done, and the undertaking be for the due use of all the proper means for its performance. In the one case, the responsibility ceases with the limits of the personal services undertaken; in the other, it extends to cover all the necessary and proper means for the accomplishment of the object, by whomsoever used or employed. Again: it is not true, in the usual and well known course of trade, that there is no other agreement implied than that deposited paper payable abroad shall be forwarded with due diligence, or as Judge Oakley charged, that "the banks, are only bound to transmit such paper in due form and in due time." By the known ordinary usage of business, unless, when altered by some special agreement or usage, the banks undertake something more than this. This the holders of paper could do for themselves. But the banks also undertake to receive and pay the funds here, when collected elsewhere. The foreign bank does not know the owner of the bill so as to open an account with him, and to authorize him to draw upon his funds when collected. They know only the bank from which the paper was received, and that bank has at least undertaken to manage the business of exchange between the places; on what ground then is the bank receiving for collection, to be answerable only for the first and last stages of the transaction, and to be discharged from any liability as to all intermediate steps. Such are my views of the general principles involved in the Let us now look to the authorities bearing or supposed to bear upon it. case. The chief justice relies much upon the decision of the supreme court of the United States, in the Bank of Washington v. Triplett & Neale, 1 Peters, 25, and on the reasoning of Chief Justice Marshall, in delivering the opinion of the court. He said, in that case, "that the bill was not delivered to the Mechanics' bank at Alexandria for collection, but for transmission; that the bank in Washington became the agent of the holder; that the bank in Alexandria performed Allen v. Merch. Bank of New-York. its duty by transmitting the bill, and the whole responsibility of the collection devolved on the bank which received it for that purpose." Unquestionably it was so in that case; for that was the express contract between the parties. The case does not state that the bill, payable at Washington, was deposited for collection in the Alexandria bank, but it expressly states that "the holder of the bill placed it in the hands of the cashier of the Alexandria bank, for the purpose of being transmitted to the bank at Washington for collection." It no where appears, or is alleged, that the bank at Alexandria had made any undertaking, express or implied, to collect the paper. This might be from the known course of business in the District of Columbia, or it might be from the express agreement as to this paper, or from the manner in which the bank received the paper: that does not appear, but the fact, nevertheless, it admitted. The Washington Bank received instructions from the holder and replied to him. Of course, there is nothing in the views I have taken of the general question which is contradicted by the conclusion of Chief Justice Marshall, "that the bank of Washington, by receiving the bill for collection, and by its letter, became the plaintiff's agent, and assumed the responsibilities of that character." Under these circumstances, I consider the authority of the supreme court of the United States, in this decision, as indirectly, at least, in opposition to the doctrine of the supreme court of this state, and certainly as giving it no support. On the other hand, a recent and equally high authority goes directly to support the doctrine I have sustained. It is the case of Van Wart v. Wooley, 3 Barn. & Cress. 419, upon the authority of which, another great question of the law of negotiable paper was decided in this court, during the last year, in the case of S. & M. Allen v. Suydam & Boyd. In Van Wart v. Wooley, the defendants at Birmingbam received a bill upon London to get accepted. This they forwarded to their London banker, who did not protest the bill for non-acceptance, or give notice to any of the parties to the paper of the rufusal to accept. Lord Tenterden, in delivering the judgment of the court, said: "Up |