Allen v. Merch. Bank of New-York.

authority of the rule, but as showing how universal it is, and that consequently, whoever undertakes in any way to collect or negotiate foreign paper, ought to be acquainted with it, or must take the risk of ignorance or negligence upon himself. If, however, this should be allowed as a good defence for the notary against those to whom he is immediately accountable, it is not so in the mouths of the present defendants. It was their duty to see the steps required by our law, and the general law merchant, taken when they became necessary, and to give instructions to their agent, unless, as is commonly very safely done, they voluntarily chose to leave the business to the discretion of some proper person; which discretion they must assume as their own.

III. There is yet one other point in this case. This, if I recollect rightly, was not pressed in the argument before us, yet when it was first suggested, it seemed to me of more force than any other in the defence. It is the fact of this negligence having been committed by a notary, a commissioned public officer appointed by the executive authority of the state.

If this laches bad been committed by that officer in that part of his duty which was peculiarly official, and could only be performed by himself or some other notary, he having been requested or instructed to perform such duty, I doubt whether the collecting bank or any other institution or person employing him, would be responsible for his negJect in that which was not voluntarily confided to him, but wherein his official duties were rendered necessary by the requirements of the law; and where his employer had done all that was within his power for the performance of the original undertaking. Then it would seem that the notary would alone be responsible. This verdict might therefore stand, though upon other grounds than those upon which it was placed by the judge at trial, or by the supreme court. Further consideration has led me to think that this principle does not apply here. Notaries are commissioned public officers, whose office gives to their notarial attestation, a peculiar authority and effect according to the law of negotiaVOL. XXII.

31

Allen v. Merch. Bank of New.York.

ble paper. This attestation it is their duty to grant when directed and required. But they are with us, also in practice, the agents of the several banks in whose employ (in the phrase used in evidence here) they may be. As such agents, it appears that business, connected with their official character, yet still not strictly official, is confided to them; such as sending of notices of non-acceptance or non-payment where no protest is required. To them the evidence shews the banks often send paper, when at maturity, to be presented for acceptance, without specific instructions, confiding wholly to them as their agents to do what may be necessary or expedient in the case. In the present instance the notary's strictly official acts were sufficiently correct. Upon refusal to accept, he noted the bill for protest. This is all that the law required. "The notarial protest is a requisite step in the case of a foreign bill, and must be made promptly on refusal. It is sufficient, however, to note the protest on the day of demand, and it may be drawn up in form at a future period." 2 Kent's Comm. 93. See also Chitty on Bills. The giving notice of non-acceptance was another and important duty, not necessarily and strictly official, which those who employed the notary thought fit for reasons of convenience to confide to him, but which might have been executed by any clerk. Again: the bill was sent without particular instructions, and left to the notary's discretion. On a similar bill of the same drawer and drawee, two days before, he had instructions to give notice, which was done, and the bill was saved. All this gives to the notary, in my view, the character of an agent, to whose discretion his employers trusted in part, and for whose neglect they should be answerable. But these are not strictly mere conclusions of law. The fact of the relation of this notary at Philadelphia to his bank, the question of the duty and usage of special instruction, the duties of the Philadel phia banks on a bill being returned by their notary merely as noted for protest, all these present mixed questions of law and fact which should have gone to the jury, under the direction of the judge. The misdirection of the judge turn

Allen v. Merch. Bank of New York.

ed the attention of the jury wholly to other points, and therefore (as is said in a recent case,) "Inasmuch as the verdict may have resulted from the error of the judge, a new trial ought to be granted." 9 Cowen, 674. Besides, were the probability of a different verdict far less than I think it is, I should still judge a new trial proper. The granting or refusing a new trial for misdirection is wholly within the discretion of the court above, to be so applied as to promote the substantial ends of justice. The misdirection here so completely covers the whole ground of the verdict, excluding all other points from the consideration of the jury, and its result has so important a bearing upon commercial usage and understanding, that it appears to me that the justice of the case and public policy will alike be promoted by a reversal of the judgments of the courts below. The emphatic language of Chief Justice Parsons is peculiarly applicable here. "The law is our criterion of right and wrong, in the decision of causes; and if it be mistaken by the court, whose duty it is to declare the law, the consequence of error may be extensive, reaching far beyond the action in which it was committed, and materially affecting other legal questions." 5 Mass. R. 365.

On the question being put, Shall this judgment be reversed? the members of the court divided as follows:

In the affirmative: Senators Fox, HAWKINS, HUNT, HUNTINGTON, LEE, H. A. LIVINGSTON, MAYNARD, MOSELEY, NICHOLAS, PECK, SKINNER, VAN, DYCK, VERPLANCK, WAGER -14.

In the negative: The CHANCELLOR, and Senators, BEARDSLEY, CLARK, HULL, HUNTER, JOHNSON, JONES, PAIGE, SPRAKER, STERLING-10.

Whereupon the judgment of the supreme court was reversed, a venire de novo directed to be awarded, and the costs in this court and in the supreme court ordered to abide the event.

Kirkpatriek v. Stainer.

In this case, the court adopted the following resolution : Resolved, that when a bank or broker, or other money dealer, receives upon a good consideration, a note or bill, for collection in the place where such bank, broker, or dealer carries on business, or at a distant place, the party receiving the same for collection, is liable for the neglect, omission or other misconduct of the bank or agent to whom the note or bill is sent either in the negotiation, collection or paying over the money, by which the money is lost or other injury sustained by the owner of the note or bill, unless there be some agreement to the contrary express or implied.

KIRKPATRICK vs. STAINER.

An agent of a foreign mercantile house who induced a merchant here to make a shipment of goods to his principals, to be sold on commission, and engaged that insurance should be effected either here or in Europe on the property shipped, WAS HELD not to be personally liable for a breach of the agreement to insure; the action, if maintainable, lay only against the principals.

See the dissenting opinion of the CHANCELLOR.

This was an action of

ERROR from the supreme court. assumpsit, brought by Kirkpatrick against Stainer, for the breach of a contract alleged to have been made by the defendant, to cause insurance to be effected upon a quantity of coffee shipped by the plaintiff at New-York for the port of Trieste. The vessel in which the coffee was shipped was lost at sea. The plaintiff alleged that no insurance had been effected, and claimed the value of the coffee, with anticipated profits. The cause was heard by referees, who made a special report, setting forth the evidence adduced before them. The principal evidence of the agreement rested in two letters: one written by the plaintiff to the defendant on the 27th August, 1830, and the answer thereto under date of the 30th August. The plaintiff's letter commences thus: "Sir-The object of the present, is to confirm the

Kirkpatrick v. Stainer.

verbal agreement made between ourselves respecting 1499 bags of coffee now discharging, of which I showed you invoices and bills of lading. The whole quantity is to be shipped on joint account. For the one half, which you take on your account, you are to pay in cash-are to advance me five-sixths of the value at the price of 5100 per pound: on this advance you are to change me interest," &c. (specifying the terms of the advance.) The plaintiff then proceeds: "The coffee must be shipped as soon as possible for Trieste, to the care of your friends, Messrs. Dutilh, Ticky & Co., with orders for immediate sales and prompt remittances," (directing the mode of remittance.) He then adds: "You will also take care that insurance be effected, either here or in Europe on the invoice amount, with ten per cent. additional, for probable gains." The defendant, in his answer of the 30th August, says: "I consent to the different points respecting the projected shipment to my friends, Messrs. Dutilh, Ticky & Co. in Trieste, of your 1499 bags of coffee. It is understood that the above parcel will be shipped on joint account between you and Messrs. Dutilh, Ticky & Co. For their half share, I shall pay cash here, at the price of 5100 short price per pound net; and on your half, which you consign for your account to my above Trieste friends, I have no objection to advance five-sixths of the above price, cash, charging the usual interest of six per cent. per annum, from the time my above Trieste friends will remit the funds to cover my drafts on London." Then after adverting to the mode of remittance, he adds: "The insurance will be covered after your desire, with ten per cent. imaginary gain on the invoice cost, either here or in Europe, as I'll judge more convenient." This letter from the defendant is signed, "Ed. Stainer." Sundry letters from Messrs. Dutilh, Ticky & Co. to the plaintiff, relative to the non-arrival of the vessel, the insurance of the coffee at Trieste, and negotiations with the underwriters there in respect to the payment of the loss; and also several letters which passed between the plaintiff and the defendant on the same subject were read in evidence. The defendant