Commercial Bank v. Pleasants

6 Whart. 375, 1841 Pa. LEXIS 47

• Court: Supreme Court of Pennsylvania
• Decided: April 3, 1841
• Status: Published

Opinion

The opinion of the court was delivered by

PIuston, J.

William Pleasants was plaintiff below. Plis claim arose as follows:—In the spring of 1836, the Commercial Bank of Cincinnati sent to this city Mr. C. Cist with a large sum of money. The object was to lend out the money to some of the banks here. Mr. Cist went to Mr. C. Macalester, who had sometimes acted for the bank, and asked him to take charge of the money. Mr. Macalester refused to do so; but offered the use of his fire-proof. Mr. Cist went to the fire-proof, and, as Mr. Macalester supposed, deposited the money. From where Mr. Macalester stood he could see into the room in which the fire-proof was, and see into the fire-proof. The fire-proof was about three feet deep and five feet wide, with shelves on each side of the door, and a space in the middle, between the shelves, of about three feet. The lower shelf was about a foot or fifteen inches from the floor. Mr. Macalester saw the handkerchief in which he supposed was the money, on the floor, rather under the lower shelf, on one side. He told Cist to take the key, and he did so, having locked the doox’, after the books, which might be used that day, were taken out. “ I think,” says Mr. Macalester, “ Cist was in and out two or three times during the morning.” Mr. Macalester was in and out several times. At length, he found Mr. Cist there, who told him he had made arrangements with the Schuylkill Bank. On being told he had not much time to spare in bank before three o’clock, he replied, he had his money here, touching his pocket. Mr. Macalester saw his pocket-handkerchief, or part of it. Mr. Macalester, when Cist was going out to the bank, thought the money was in several packages, and in each pocket. When this occurred, the door of the fire-proof was shut—whether locked or not, does not appear.

On returning from dinner, Mr. Macalester found Cist sitting in his office in distress; he said he had lost a package of money enclosing one hundred thousand dollars; had missed it at the Schuylkill bank; thought he had seen it at his boarding-house that morning; was positive he .had seen it at Wheeling; thought he had put it in the fire-proof that morning. The cashier of the Schuylkill Bank came in, and he, Cist, Mr. Macalester, and Mr. Toland, searched the fireproof, and did not find it.

The persons in Mr. Macalester’s office were, William Pleasants, (who was the principal person in the office,) J. P. Pleasants, and Michael Brady. The latter person, says Mr. Macalester, saw the money put in—he took out the books before Cist put in the money.

The bank at Cincinnati was informed of the loss, and published the following advertisement:

‘$10,000 Reward.—The above reward will be paid on the recovery of a package containing one hundred thousand dollars, in post notes of the Bank of the United States, of the denomination of five hundred and one thousand dollars, which was lost at Wheeling, or between that place and Philadelphia, between the 29th of January and the 3d of February. The package was made up at St. Louis, and addressed, on the outside, to ‘ William S. Hatch, Esq.,’ cashier of the Commercial Bank of Cincinnati, and was forwarded without being opened, from the Commercial Bank to Philadelphia. The loss is supposed to have taken place after the arrival of the bearer at Wheeling, and before he reached Philadelphia, but may possibly have occurred on his arrival at the latter city.

The above reward will be paid on the delivery of the said package to Charles Macalester, Esq., Philadelphia; to John Snyder, Esq., cashier of the bank of Pittsburg; to John List, Esq., cashier of the N. W. Bank of Virginia, at Wheeling; or to the cashier of the Commercial Bank at Cincinnati, and no questions will be asked.

Measures have been adopted to stop the payment of the notes; the descriptions of them have been extensively circulated; they will be of no value except to the owners.

If convenient to the findeé* to deliver the money, he is authorised to deduct the reward, and remit the balance, by mail, to the bank.

J. S. Armstrong, Pres’t.

Commercial Bank of Cincinnati,

March 17, 1836.”

Matters remained thus until the latter end of August, 1836, at which time the plaintiff below, about noon, on coming out of the back room, met H. Toland, Jr., who was coming from the street into the front room. Mr. Toland had been a short time with Mr. Macalester to acquire some acquaintance with business, but had no salary. “ Mr. Pleasants told me,” says he, “ to come into the back room, and he unlocked the fire-proof; (it was our custom to leave the fireproof unlocked;) he then told me to stoop down and look; I did so; there was a good deal of sand at that time on the floor of the fireproof, which had been built at that time about - twelve months. I knelt down to look, but having just come in from the light, I could distinguish nothing but a piece of brown paper against the wall, and another piece on the sand. I made some hasty remark, and he told me to look again, when I -made out the direction on the paper against the wall to be ‘William S. Hatch, Esq.,’ and it was marked on the corner ‘ $100,000.’ I exclaimed it was the lost package, and took it out, at which Pleasants said something disapproving of my touching it. I then left the package in the office, and went over for my father, who had a store, at that time, No. 64 Dock St., but he was not in; he came into Mr. Macalester’s office soon after, and he and Mr. Pleasants took the packages, as I understood from them, to the Girard Bank, and deposited it to the credit of the Commercial Bank of Cincinnati, and took a certificate of deposite, (I think.) Mr. Macalester was out of town at the time the package was found.” Pie then goes on to state, that he was not in the employ of Mr. Macalester when the package was left, and only knows of it by report; that no other person than himself and Mr. Pleasants was in the back room when he saw the paper, and took it up. Michael Brady, a boy in the employ of Mr. Macalester was in the front room.

■ Mr. Lewis, cashier of the Girard Bank, proved that “ the bundle or package was brought to the bank, and, after some conversation, opened, counted, and deposited to the credit of the Bank of Cincinnati, and absorbed long since in their business with us.”

At the time the package was carried to the Girard Bank, and before it was opened, something was said to Mr. Pleasants about retaining the package .until he had claimed the reward, or made up his mind whether he would claim it. To this he made no other reply than the request that it should go at once to the credit of the Commercial Bank .of Cincinnati.

The amount of the charge of the judge of the District Court was distinctly that the plaintiff- is entitled to recover.

In forming an opinion on the meaning and effect of a proposition expressed in words or written, there fs seldom any more required than to know the circumstances in which the party was placed, the object to be obtained, and the compensation proposed to be given: metaphysical, and logical, and (unless in professional matters) technical acumen is not required, and sometimes misleads. The word lost, like most other words, has a different signification according to the other words in connection with which it is used, and the subject to which it is applied. It is often used so that it is correctly applied on one state of facts, and not correctly applied in a different state of facts. Most men, who have transacted much business, have, at times, looked for a paper, and used the expression that it was dost; if out of the person’s possession, and not in the possession of some other to whom he gave it, he will say it is lost; if he afterwards finds it in his own possession, or that of some person to whom it was properly given, or in some place where it was properly put, he says it was not lost, it was overlooked or mislaid. An article in the possession of the owner, or of a person to whom he gave it, or in. a .place where he or that person put it, and where it remains safely, is not lost.

So the word recover has its meaning affected by circumstances under which it is used, or the connection in which it is used.

Evidently, the reward was offered under the impression that Mr. Cist had dropped the package, or that it had been taken out of his possession without his knowledge, in which case the words lost and recover would be proper.

Mr. Cist was the agent of the bank. If he or his wife, when he got home, had found the package, in his trunk, enclosed in another package of papers, or enveloped 'in some article of clothing, Mr. Cist being an honest man, it would never have been lost—only mislaid or overlooked.

If, by some mistake, William S. Hatch, instead of giving this package to Mr. Cist, had put it in the safe at Cincinnati, no one would have known where it was, but it would not have been lost, though it would have been' mislaid, and no one in the bank have known where it was for some weeks or months; and neither Mr. Hatch nor any officer of the bank could have become entitled to the reward by seeing it; for it had not been lost, it was not recovered; and as it had been in the possession and was in the possession of Mr. Hatch, no one would deliver it to him, in the fair import of the terms, “ on the delivery of it to William S. Hatch,” &c.

There seems also some misconception as to the situation of Mr. Macalester in this business. He was not the agent to put out this money, and he refused to take charge of it until it was disposed of. He was, therefore, in no way answerable if never seen mo,re. But he was the agent to receive it for the bank if it had been lost. On the money being put into his possession, by a person who had found it or stolen it, the reward would have been earned; but if, without his knowledge, it had been overlooked in his fire-proof, and had never been out of it, and Charles Macalester himself had first seen it, it would never have been lost, never recovered, and never could be said to be delivered to Charles Macalester,.in whose possession it had been all the while, though without his knowledge. The advertisement was not written for such a state of facts, and Mr. Macalester never would have claimed the reward; and if he had, would not have recovered it. Now, William Pleasants, the principal man of business in the office, was in the place of Charles Macalester, and for the purpose of all official business, was Charles Macalester. Any stranger having found this package where it had been really lost, if such had been the case, who had brought it to the office, and delivered it in the office to William Pleasants, in the absence of Mr. Macalester, and taken his receipt for it, could have recovered the reward from the bank. On the supposition, then, that it was always in the fire-proof of Mr. Macalester, it was never lost, only overlooked ; it was not, could not be delivered to Charles Macalester, it was always in his possession, and the case provided for by the advertisement never had occurred, and never could occur; for I repeat —the accidental seeing it by the plaintiff was the same as if Mr. Macalester had first seen it.

The case was argued as if it was certain that the package had never been out of the fire-proof of Mr. Macalester. If it had been taken from that place, and returned from compunction of conscience, or fear of detection, it would not make the case of the plaintiff below better.

Mr. Macalester was, by the advertisement, appointed by the bank its agent to receive the package. On the delivery of it to him, the reward became due. But it was not delivered to him. It was discovered in the case in his office, that is in his possession, and placed beyond his control. I have come to the conclusion, that while in his fire-proof it was not lost, but if the broadest meaning_of lost is to be adopted, and thus make it lost while there, and the claim is made by one who did nothing more than see what others overlooked, the principle must be carried through, and it ought literally to have been delivered to Mr. Macalester as one of the four persons named. This was not done, but it was taken out of his power and delivered where he had no control over it. He who claims a large sum for doing what required no exertion of ingenuity or labour of body, but solely on the ground of the literal performance of what was required in the proposal, must show that he performed every part, and not that he did one of the things required, and omitted or went contrary to the other requisitions, or some of them. The judgment of the court below is reversed, and a venire de novo awarded.

Rogers, J., dissented.

Judgment reversed, and a venire de novo awarded.