Earnest v. Stoller & Hill.

According to the course of business as claimed by defendants, the Mastin Bank should have sent the other copy by the next mail to the Exchange Bank of Denver; but this apparently was omitted, as the officers of the latter bank testify that they did not receive it until some time after the Mastin Bank suspended, and then notice of the credit was sent by the receiver of the bank.

The date as given in the certificate, July 31, is shown to be incorrect. It was issued on the first day of August and the credit was not entered on the books of the bank until the next day. On the third day of August, 1878, the Mastin Bank was not opened for business, and from thence hitherto it has been wholly insolvent, so that the sum so deposited by defendants has not been received by the Exchange Bank nor by the plaintiff. It is claimed by defendants that the money was depos ited in the Mastin Bank in compliance with instructions from plaintiff to place the amount to his credit in the Exchange Bank of Denver.

As to the instructions given relating to the proceeds of the sale and all the facts herein before mentioned, there is no controversy.

At an interview between the plaintiff and defendant Stoller, which took place at Kansas City about the time the cattle arrived at that place, defendants were directed to place the money received from the cattle to plaintiff's credit in the Exchange Bank of Denver. Both parties agree in this statement, and also in saying that no direction was asked or given in respect to the manner of transmitting the money to the Exchange Bank. Considered by itself, the instruction given by. plaintiff to defendants imports nothing more than the substitution of the Exchange Bank of Denver for himself as the party to whom the money was to be sent.

But defendants contend that it has a peculiar significance when taken in connection with a custom or usage universally recognized by cattle dealers at Kansas City, and well known to all persons dealing with them, by which money is remitted

Earnest v. Stoller & Hill.

to banks in other places in the way and manner adopted by defendants in this instance.

By this usage the factor is required to deposit in some bank at Kansas City the proceeds of any consignment that may be made to him to the credit of the bank to which the remittance is to be made, and to forward to his customer one of the slips issued by the bank at Kansas City attesting such deposit. With that, it is said, his duty ends; and if any loss occurs, it must fall on the principal rather than the agent.

From the evidence given at the trial it seems that the usage is not recognized by all of the dealers in cattle at the Kansas City stock yards, but perhaps it is sufficiently shown that the course pursued by defendants was recognized amongst such dealers at that place as a method of transmitting money to distant places. Four out of thirteen or fifteen firms engaged in that business at the stock yards near Kansas City were in the habit of remitting money in that way, and the officers of the First National Bank, formerly in business there, and of the Mastin Bank, testify that the practice was general.

The direction to defendants to place the money to plaintiff's credit in the Exchange Bank of Denver required them to transmit the money to that bank in some usual and ordinary method, recognized amongst business men as proper for that purpose; and if there are several methods of transmitting money from Kansas City to Denver, equally in use amongst business men, and safe, serviceable and economical, no reason is perceived for saying that defendants were bound to adopt one such method more than another. From what we know of business in the country at large, although no evidence was given on that point, we may assume that if the money had been sent by express, or by bill of exchange on New York, the risk of loss in transitu would have been with the plaintiff.

Choosing fairly between known and recognized methods of sending the money as directed by plaintiff, defendants would not be held responsible for an error in judgment, or for any misfortune to which they had not contributed. Wharton's

Earnest v. Stoller & Hill.

Agency, 248; Chandler v. Hogle, 58 Ill. 56. And so we may say that if the method adopted by defendants for transmitting the money to the Exchange Bank was in use amongst business men in Kansas City and Denver, they cannot be chargeable with negligence or omission of duty to their principal in resorting to it.

But when we consider attentively the nature of the alleged usage, we' find that it is not shown to be of sufficient extent to embrace the subject of this controversy. It is said to be a method of transmitting money from one city to another, but it cannot be such unless it extends to the place to which the money is to be sent as well as to that from which it is started. It must be a usage between the bankers in Kansas City and the bankers in Denver, or between the Mastin Bank and the Exchange Bank of Denver, to be effective in any way. According to the alleged usage, the effective act in transferring the funds from Kansas City to Denver was to be performed by the Denver Bank.

Money was deposited in Kansas City to the credit of the Denver Bank, and of course it would remain there until the bank should draw for it or get it in some other way.

In other words, defendants were instructed to send the money to the Exchange Bank of Denver, and instead of complying with that instruction they placed it in the Mastin Bank at Kansas City, and invited the former to come to Kansas City and get it, or send for it, as would best suit its convenience. If by force of some general usage between the banks named or between the banks in Kansas City and the banks in Denver, or some special agreement, authority had been conferred on the Mastin Bank to receive deposits for the Exchange Bank, the position assumed by defendants would be more tenable. But nothing of that kind was shown.

The Exchange Bank did not keep an account with the Mastin Bank at the time of this transaction, and the alleged usage was not shown to exist, except in Kansas City.

Whatever the custom of banks and dealers in that city may

Earnest v. Stoller & Hill,

be in matters of this kind, it could not confer the authority here claimed for it.

The Exchange Bank was not in any way bound to recognize the deposit made by defendants in the Mastin Bank for its use, or to take any action in respect to it.

For the purpose of transmitting the money the defendants could have notified the Exchange Bank that they held it subject to order, and the act would have been just as effective.

That the money was not sent, or anything that could symbolize it, is too plain for argument.

The language of the deposit slip is, "Your account has credit," which means no more than we hold for your use, or we have a sum of money, and you can get it whenever you may apply for it. Until the Denver Bank should agree to such holding in some form, or should send for the money by draft or otherwise, no transfer of the fund would take place. And whether this would have been done by the Denver Bank at any time, if the Mastin Bank had continued in business, is a matter for conjecture only. They were not bound to act, and we cannot assume that they would have taken any step to get the money.

That is not, however, of any importance in this connection. It is only necessary to say that defendants were instructed to send the money to the Exchange Bank, and they have not done it.

That they acted in good faith upon the assumption that the Exchange Bank would accept the credit in the Mastin Bank, and that the course pursued by them was sanctioned by commercial usage at Kansas City, will not help them.

They should have put the money into the Exchange Bank, or adopted the usual and ordinary means to effect that end, and having failed to do either, and to show affirmatively that such failure was not the cause of the loss, they must be held for

the amount.

The judgment will be for the plaintiff.

VOL. II-25

Egbert v. Citizens' Insurance Co. of Missouri.

EGBERT and others v. CITIZENS' INSURANCE COMPANY OF

MISSOURI.

(Eastern District of Missouri. March, 1881.)

1. DEPOSITION CAPTION - NAMING PARTIES.-Where depositions are taken de bene esse, under the act of congress of May 9, 1872, in a case in which there are several parties plaintiff and defendant, it is not necessary to state in the caption the names of all the parties to the suit. It is sufficient to give the style in the case thus: A. B. et al., plaintiffs, v. C. D. et al., defendants.

2. SAME-SAME.- A caption sufficiently shows the reason for taking depositions if it states where the depositions are taken, without giving the distance from the place of taking to the place of trial, if the distance is in fact, and is well known by all parties to be, more than one hundred miles. 3. SAME-CERTIFICATE.- Where an officer by whom depositions are taken seals them up, marks the style of the case on the envelope, directs them to the clerk of the court in which the case is pending, and writes the usual indorsement across the seal, and the depositions are received by the clerk to whom they are addressed, through the mail, held, that the certificate to the depositions should be deemed sufficient, though it fails to state that the officer delivered the depositions to the court in which the cause was pending, or that he sealed them up and deposited them in the postoffice.

Motion to suppress depositions.

E. T. Farish, for plaintiff.

O. B. Sansum, for defendant.

TREAT, District Judge. The several plaintiffs named in this suit, according to the petition, were copartners doing business in San Francisco, California. The defendant, being a Missouri corporation, had an established agency in the former place, and its agents there drew a bill of exchange on the defendant dated July 12, 1877, for $2,500, on account of a loss sustained under a named policy. Said bill went to protest. Subsequently, in 1877, successive payments were made thereon to the amount of $1,700, and this suit was instituted September, 1879, in the state court, for the balance due. The defendant filed a general denial, and caused the suit to be removed to