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Wills took up his residence at Buchanan, Ga., and on the 7th day of October, 1907, called upon the cashier of the Buchanan Banking Company, of which the defendant is the successor, at that place, and stated that he desired to open a small account, which was assented to, and he opened an account in his own name with a deposit of $10 in cash, supposed to be his personal funds. At the same time, or thereafter, but on or before the 14th of the same month, he informed the cashier that he represented Morris & Co. in selling its products and collecting therefor, and that his instructions were not to remit the checks received from customers, but to indorse them and to remit the proceeds, which he stated he would do by procuring cashiers' checks or drafts "principally from the Bank of Senoia." He stated, evidently as a reason for not opening a bank account at Senoia, that the Bank of Senoia or banks of Senoia would not collect the checks of customers of Morris & Co., without charging exchange; whereas he understood, and apparently correctly, that the bank at Buchanan would collect such checks without making any charge. He also stated to the cashier that it was more convenient for him to obtain cashiers' checks or New York exchange or drafts at Senoia than at Buchanan, for the reason that his business called him there at the particular weekly period when he was required to make remittances to his employer.
It also appears by the testimony of the cashier that it developed in a discussion between him and Wills that cashiers' checks or exchange would be procured at the Bank of Senoia cheaper than the defendant or its predecessor would issue them. Thereupon, without further information with respect to Wills' authority, the cashier permitted Wills to indorse and deposit to the credit of his individual account checks made by the customers of Morris & Co. to its order. The first of such checks was deposited in said account on the 14th day of October. Wills continued to represent Morris & Co. in this territory, obtaining and forwarding orders and receiving weekly statements from his employer with respect to invoices of goods shipped to customers and the amounts to be collected therefor, and collecting, principally by checks to the order of Morris & Co., which he indorsed and deposited to the credit of his account with the defendant or its predecessor, until August, 1910, or for a period of nearly three years, during which time it is evident that there were a very great number of such transactions, for this action relates to 76 checks which were received and unaccounted for by Wills within a period of less than two months.
It appears that during this time, with the exception of the checks involved in this action, which were drawn by customers between the 18th day of July, 1910, and the 6th day of August, 1910, Wills remitted to his employer regularly the amounts he collected from customers, and he did this principally through the Bank of Senoia, but at times through other banks along his route, by obtaining cashiers' checks or New York exchange purchased by his individual checks drawn on this account.
It appears by the testimony of the cashier of the defendant and its predecessor that in a few instances Wills, prior to the time his employer suspected that he was not remitting the full amount collected,
obtained cashiers' checks to the order of Morris & Co. from the defendant; but that is controverted. It also appears that during this time Wills was engaged in the hotel and poultry business and as a preacher at Buchanan, to the knowledge of the officers of the defendant. In addition to the checks of Morris & Co. which were deposited to Wills' credit in this account, items of cash and checks payable to his individual order were also similarly deposited; but the amount thereof was not shown.
The position taken by the defendant is that, having received no notice from Morris & Co. that Wills was not authorized to indorse the checks and to deposit and draw out the proceeds as he did, it assumed that he was acting within his authority, and it relied upon the acquiescence of his employer. On the other hand, it is contended on behalf of the plaintiff that Morris & Co. assumed that Wills was indorsing the checks as directed and that he was receiving in exchange for the checks so indorsed cashiers' checks or New York exchange and remitting the same to it. It appears, however, that Morris & Co. did not rely implicitly upon the integrity of Wills, for in the year 1909 it sent an auditor over his route to "visit the customers and check up the payments and checks, to see that everything was being handled in the proper way"; and such auditor made a “general audit" of Wills' accounts and reported everything "all right." Morris & Co. was, we think, chargeable with notice of the fact that Wills did not follow its directions in indorsing the checks "for exchange only"; for it may fairly be inferred that the checks of the customers thus examined by the auditor showed that they were not cashed by the banks which issued the cashiers' checks, which during this long period Wills forwarded to Morris & Co.
There is evidence indirectly tending to show that Morris & Co. did not know that Wills was depositing the checks in his individual account until it was reported by another auditor, who was sent out by the credit manager on the 6th of August, 1910, or discovered by the credit manager himself shortly after the date last mentioned; but it was not shown that the auditor who went over the route in 1909 did not discover the fact, and it is a reasonable inference that he did, for it is probable that the customers' checks which the auditor examined showed that they had been collected by the defendant, and Morris & Co. knew that few, if any, of the cashiers' checks were issued by defendant. Moreover, it is a reasonable inference that it was expected that Wills would open a bank account, for it was not expected that he should personally go to each bank upon which a customer's check was drawn and collect it, or surrender it, and obtain exchange therefor to remit to his employer. It was expected that he should make remittances at weekly intervals; and it could not reasonably have been expected that he could call at any bank wherever he happened to be at the time he was required to make remittances, and, without opening an account against which dishonored checks might be charged up, obtain cashiers' checks or drafts for the full amount of the checks of customers, which he was to indorse and deliver to the bank issuing the cashiers' check or draft. That would be equivalent
to cashing the checks at their face value; the bank not only taking the risk of collection, but losing the use of its money in the meantime. Of course, in the event of noncollection, recourse could be had to the liability of Morris & Co. as indorser; but it cannot be assumed that banks would do business in that manner.
As already observed, it appears that Wills was authorized to collect cash from the customers, and that he was fully authorized to indorse the checks of the customers in such manner as would enable the transferee to collect them without further indorsement on behalf of the payee. It is unnecessary to consider the legal effect of the attempt to limit Wills' authority by instructions that, when he received a check from a customer to the order of his employer, in indorsing the name of the payee he was required to add the words "for exchange only," because, as already appears, Morris & Co. was chargeable, long before the checks in question were credited to Wills' account, with knowledge that he had not understood, or had not acted upon, his instructions, and that he was merely indorsing the checks of customers in the name of his firm and in his own name.
We are of opinion, also, that Morris & Co. during this long course of business was chargeable with knowledge of the manner in which its agent was conducting its business, and that it is now too late for it to contend that he exceeded his authority on depositing these checks to the credit of his individual account. As we view the evidence, therefore, the court erred in directing a verdict for the plaintiff, and, the material facts being uncontroverted, the defendant's motion for the dismissal of the complaint should have been granted.
It follows that the judgment should be reversed, with costs to appellant, and the complaint dismissed, with costs. All concur.
(155 App. Div. 431.)
PEOPLE v. MAJORANA.
(Supreme Court, Appellate Division, Second Department. February 7, 1913.) 1. LARCENY ( 13*)-ESSENTIAL ELEMENTS-CONSENT.
It was not larceny for accused to receive money from another, upon any misrepresentation that accused could and would obtain the latter's relief from service in a foreign army, since the payment was made with intent to vest title in accused, and did so.
[Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 5-12, 25; Dec. Dig. § 13.*]
2. FALSE PRETENSES (§ 7*)-ESSENTIAL ELEMENTS.
That, in consideration of a money payment, accused stated to the payor that he could and would obtain the latter's release from service in a foreign army, does not show false misrepresentations, since accused's assurance that he would perform the service was a promise, and that he could do it was a matter of opinion; he assuming to state no fact, present or past.
[Ed. Note. For other cases, see False Pretenses, Cent. Dig. §§ 32, 33; Dec. Dig.
Appeal from Queens County Court.
For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Salvatore Majorana was convicted of larceny in the second degree, and he appeals. Reversed, and new trial ordered.
Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH, JJ.
Samuel Wechsler, of New York City, for appellant.
Matthew J. Smith, of Long Island City (W. J. Creamer, of Brooklyn, on the brief), for the People.
THOMAS, J. The defendant was convicted upon two counts in an indictment, one charging larceny of $60, and one alleging that the money was obtained by false representations.
 The complainant, wishing relief from service in the Italian army, relied upon defendant's statement that he could and would obtain it, and for his proposed service paid him the money. There was no larceny, as the complainant intended to vest the title in the defendant, and did so.
 There was not false representation, as the defendant assumed to state no fact, present or past. People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep. 546. The assurance that he would perform the service was a promise, and that he could do it was a matter of opinion. Neither sustain the count. People v. Miller, supra; People v. Blanchard, 90 N. Y. 314. The defendant is such a cheat as the law cannot punish.
The judgment of conviction should be reversed, and a new trial ordered.
BURR and RICH, JJ., concur. WARD, JJ., concur in result.
HIRSCHBERG and WOOD
(155 App. Div. 104.)
ROYAL TRUST CO. v. HARDING et al.
(Supreme Court, Appellate Division, First Department. February 7, 1913.) 1. JUDGMENT (§ 938*)—ACTION ON FOREIGN JUDGMENT COMPLAINT SHOWING JURISDICTION.
In an action on a Canadian judgment, a complaint, alleging that the court in which it was recovered was a court of general jurisdiction and that due service of notice of the application for judgment was made on defendants, was sufficient to show prima facie the regularity and validity of the judgment and the court's jurisdiction over the person of defendants, leaving it to defendants to show lack of jurisdiction.
[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1772-1774; Dec. Dig. § 938.*]
2. CORPORATIONS (§ 263*)-FOREIGN RECEIVERS RIGHT TO SUE.
A foreign trustee, receiver, or liquidator of a corporation may sue a resident stockholder in the courts of this state for his proportionate liability as such stockholder.
[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 831, 1065; Dec. Dig. § 263.*]
For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
3. CORPORATIONS (§ 268*)—FOREIGN RECEIVERS-ACTIONS-SHOWING TITLE. A complaint alleging that plaintiff was, by an order duly made by a foreign court of general jurisdiction, appointed liquidator of a corporation and duly qualified, and that by the provisions of the act under which he was appointed all the property and assets of the corporation came into his custody or under his control, sufficiently showed his title to the property and assets to enable him to enforce a resident stockholder's proportionate liability as such, since it is only necessary to show that a payment to him would bar a recovery by any one else.
[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1129, 1131, 1133-1147; Dec. Dig. § 268.*]
Appeal from Special Term, New York County.
Action by the Royal Trust Company, as liquidator of the Ontario Bank, against J. Horace Harding and others, doing business as Charles D. Barney & Co. From an order (78 Misc. Rep. 309, 137 N. Y. Supp. 1101) overruling a demurrer to the complaint, defendants appeal. Affirmed.
Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.
Maurice Leon, of New York City, for appellants.
SCOTT, J. The plaintiff is a Canada corporation. It is alleged that the Ontario Bank was prior to October 13, 1906, a corporation organized under the laws of Canada, doing business in Toronto; that on October 13, 1906, it became insolvent, and that thereafter proceedings were commenced under a Canada statute to wind up the bank; that the High Court of Justice, in which such proceedings were instituted, is a court of general jurisdiction, and that it made an order on September 29, 1908, that said bank be wound up; that by an order duly made the plaintiff was appointed liquidator of said bank, and duly qualified as such, and that by the provisions of the winding-up act all the property and assets of the bank "came into plaintiff's custody or under its control," and that by law it is authorized and empowered to bring and defend actions and proceedings; that defendants are copartners in business in the city of New York. The foregoing allegations are common to both causes of action.
The first cause of action is upon an alleged judgment; the allegations relating thereto being as follows:
"VII. That on or about the 14th day of February, 1911, after due service of notice of application therefor had been made on the defendants, pursuant to an order therefor made as provided by said winding-up act, and the amendments thereto, an order was duly made and entered in said proceedings directing that the above-named defendants be settled on the list of contributories as contributories in their own right in respect of 50 shares of the capital stock of the above-named bank, and that said defendants as such contributories pay, on or before the 4th day of March, 1911, to the plaintiff the sum of four thousand seven hundred and fifty dollars ($4,750).
"VIII. That under and pursuant to the express provisions of said windingup act, and the amendments thereto, every order of the court or judge for the payment of money or costs, charges, or expenses made under said act is deemed a judgment of the court and may be enforced against the person or For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes