Anderson v. Bank

1 F. Cas. 838

• Court: U.S. Circuit Court for the District of North Carolina
• Decided: June 15, 1869
• Status: Published

Opinion

CHASE, Circuit Justice.

This is a suit in equity by the plaintiff, a citizen of Kentucky, against the defendants, who are citizens of North Carolina. The substance of the case is that Anderson having sold some mules to Harris, received his bonds for the price, and deposited them in the Bank of Cape Fear for collection, late in 1860, or early in 1861. Subsequently, the bank received partial payments, which were remitted to Anderson. The civil war broke out soon afterward, and there were no further payments until November, 1862, when the balance on the first bond was paid. The second bond of $450, and interest, were paid in full early in 1863. These payments were made in Confederate notes, and the bonds were surrendered to Harris.

The bill charges that there was collusion between the bank and Harris in this attempt to satisfy the bonds by payment in Confederate currency, and prays that the defendant may be compelled to satisfy the debt due from Harris. The bill does not allege that Harris is insolvent,, and the charge of collusion is denied by the answer, and not supported by proof.

There is no doubt that the bank was constituted his agent for collection by the plaintiff, and it is not denied that its duties as such were faithfully fulfilled until after the commencement of the civil war. The agency of the bank was not terminated by the breaking out of hostilities. The bank might, indeed, have declined to act further under its agency, and might have retained the bonds for delivery to the plaintiff, but if it acted at all, it was bound to act with care and diligence. In our opinion, the receipt of Confederate notes, in payment of a debt due to a citizen of a state adhering to the national government, was not the exercise of such diligence. Such receipt, however, did not discharge the debtor from his debt. The bonds, though paid in form and delivered to him as paid by the agent, were not paid in fact He still remained liable for the full amount of the debt. Nothing could discharge him except ratification of the acts of the agent, or voluntary release by the creditor, or actual payment in lawful money. No discharge, such as is here described, is alleged. The evidence is that the creditor disavowed the unauthorized acts of the agent and insisted on payment in full. But he can not recover damages for consequential loss without proof of such loss. If the debt- or is not discharged, and is able to pay the debt, and no loss has arisen to the creditor from the acts of the bank, it is difficult to see how the creditor can establish any right as against that corporation. Rights and remedies as between the bank and the debt- or are matters between them, and not between the bank and the creditor, unless loss has arisen to the creditor. But the bill contains no allegation of the insolvency of the debtor or of other loss. In the present state of the pleadings, therefore, the particular relief prayed for in the bill can not be granted.

[NOTE. The one exception to the rule that war suspends all commercial intercourse between the citizens of two belligerent states is that of allowing the payment of debts to an agent of an alien enemy, where such agent resides in the same state with the debtor. But, said Mr. Justice Bradley, in Insurance Co. v. Davis, 95 U. S. 425, “this indulgence is subject to restrictions. In the first place, it must not be done with the view of transmitting the funds to the principal during the continuance of the war, though, if so transmitted without the debtor’s connivance, he will not be responsible for it. * * * In the next place, in order to the subsistence of the agency during the war, it must have the assent of the parties thereto. * * * It is not enough that there was an agency prior to the war. It would be contrary to reason that a man without his consent should continue to be bound by the acts of one whose relations to him have undergone such a fundamental alteration as that produced by a war between the two countries, to which they respectively belong.”]

But since the bank is undoubtedly liable to the debtor for the value of the Confederate notes, received from him, and the debtor remains liable to the creditor for the full amount of the bonds, we think that, to avoid multiplicity and circuity of action, under the general prayer for relief, and upon the whole case, a decree may be made for the payment by the bank to the plaintiff of the amount due to Harris, and against Harris for the balance remaining due after crediting that amount upon the bonds. If the plaintiff is not content with siich a decree, his bill, in its present form, must be dismissed; but if he chooses, he may amend by alleging the insolvency of Harris, and loss of his debt through the unauthorized action of the bank. Emerson v. Mallett, Phil. Eq. 236; State v. Mebane, 63 N. C. 315; “Liability of Guardian,” see Confederate Notes.