Bu&er, Ch. J.
In the discussion of this case it is unnecessary to consider particularly the agency of Hourquet & Poylo in the transaction, as they acted solely as the gratuitous agents of the plaintiffs, and had no interest in the subject of the business. It may, therefore, be'treated as a transaction occurring directly between the plaintiffs and Ban Bunnels, and concisely
described, was to the following effect: The plaintiffs were merchants doing business at Panama, and one Ohristofel was a customer and debtor of theirs, residing at San Juan del Sur, near Bivas, in the State of Hicaraugua. Ohristofel was desirous of discharging his obligations to the plaintiffs, but was embarrassed in doing so by the infrequency of communication between Bivas and Panama, and the want of a system of exchange enabling him to transmit funds safely and expeditiously from one place to the other. Under these circumstances the plaintiffs consulted Hourquet & Poylo, a business firm at Panama, as to the best manner of collecting the debt. The plaintiffs were informed by Hourquet & Poylo that Ban Bunnels was a correspondent of theirs residing at Bivas, and that the collection could probably be made through him, and offered to transmit a draft on Ohristofel to Bunnels, for that purpose. Thereupon the plaintiffs made their draft on Christofel at sixty days for $1,000 payable to Hourquet & Poylo, who indorsed the same to Runnels and forwarded it to him at Bivas for collection. In due time it was received by Bunnels, and at its maturity was paid to him, in Columbian currency.
It becomes important now to determine the legal obligations and duties of the parties toward each other at this stage of the transaction. In the collection of the draft Bunnels acted as the mere agent of the plaintiffs, and had no interest in the proceeds except, perhaps, a lien thereon for the value of his services in making the collection. He had no right or authority to use such funds for his individual purposes, and his sole duty in relation to them, was that of their transmission to his principals. The nature of the business impliedly authorized him, to make such transmission according to the usages of trade, and in the absence of such usages to do so by some other method which should, in the exercise of reasonable care and prudence, promise to accomplish the object intended. It was, therefore, open to him to transmit the funds received in specie as they were collected, or he could have purchased a bill of exchange, if opportunity served, at that place, and transmitted that; of he could remit them in any other way deemed most safe, convenient and
desirable to him, subject to the approval by his principals, of. the method adopted. It does not appear in the case but-that Runnels was a merchant or banker and accustomed to sell exchange upon foreign places. However that may be, he-in fact sent to the plaintiffs, February 4, 1879, immediately upon collection, the proceeds thereof, less cost of collection and exchange, by the draft in suit. This was his own draft upon the defendant Morris, at Hew York, at ninety days’ sight. Upon the receipt of this draft by the plaintiffs, it was accepted by them and remitted to Hew York, for presentation to, and acceptance by the drawee, and the same was accepted by him February 26, 1879.
The sole question in the case is whether the plaintiffs were
bona fide
holders for value of the draft. We cannot doubt but that they were. If on receiving the funds in question Runnels had purchased with them a bill of exchange or draft from a merchant, or banker, according to the usages of trade, and trans-, mitted the same to the plaintiffs, no question could arise but that he acted as their agent in the transaction, and they would have been
bona fide
holders of such papel within all definitions of that character, and we are unable to see the difference in principle between such a ease and the transaction in question. The funds collected by Runnels were, until they consented to their appropriation by him, at all times the property of the plaintiffs. Runnels’ sole duty in relation to them was that of transmission to the plaintiffs, and until that duty was legally performed he held them in a fiduciary capacity for a specified purpose. His duty of transmission could not be performed by remitting his own obligation, payable at a future day, except by the consent and approval of the plaintiffs. Until this consent and approval was given the funds remained the property of the plaintiffs, and any use of them by Runnels before that time would have constituted a violation of his duty' to his principals, which it cannot be presumed he committed.
■Doubtless the lack of adequate facilities of exchange between Riv s and Panama induced Runnels to offer, and the plaintiffs to accept, the mode of remittance adopted, and it was entirely
competent for Runnels to propose, and for the plaintiffs to accept such a solution of the inconveniences of the situation; but no title to the funds collected passed to Runnels, until the acceptance of the draft by the plaintiffs. After that and not till then he was authorized to use those funds as his own.
By the original employment the plaintiffs contemplated no credit to Runnels and he had no right to, and it does not appear that he even supposed, he acquired any right to use the funds in question for his own purposes, or that he ever did so use them. The conventional relation of debtor and creditor never existed between Runnels and the plaintiffs until the acceptance of his draft upon Morris, and then those relations were governed by the liabilities existing by force of the draft, alone.
In accordance with the rule which precludes a court from presuming a violation of duty by an individual, we must assume that Runnels performed his duty, and his whole duty, to the plaintiffs as their agent. This required him to safely keep their funds until he had transmitted them according to the usage of trade, or in some other mode approved by them. The legal effect of the method adopted was to transfer the title to the funds collected, to Runnels simultaneously with the acceptance by the plaintiffs of Runnels’ draft upon Morris, and was the precise equivalent of the payment of so much money in the immediate purchase of a draft or bill of exchange by one person from another. We are, therefore, of the opinion that the plaintiffs were the
bona fide
holders for value of the draft in suit and are entitled to recover thereon.
The General Term conceded that the plaintiffs were
bona fide
holders for value of the bill before acceptance, but deny them that character after acceptance as against the acceptor. We think the concession is fatal to the conclusion reached by that court.
It is said that the
Farmers & Mechanics’ Bank
v.
Empire Stone Dressing Co.
(5 Bosw. 290) is authority for the position. It is true that some expressions of the learned judge writing in that case may justify the citation, yet it should be considered
that those remarks were unnecessary to the decision of the case, and the same court have twice since then refused to follow it.
We conceive the rule there laid down finds no support in the doctrines of the text-writers or the reported cases.
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Bu&er, Ch. J.
In the discussion of this case it is unnecessary to consider particularly the agency of Hourquet & Poylo in the transaction, as they acted solely as the gratuitous agents of the plaintiffs, and had no interest in the subject of the business. It may, therefore, be'treated as a transaction occurring directly between the plaintiffs and Ban Bunnels, and concisely
described, was to the following effect: The plaintiffs were merchants doing business at Panama, and one Ohristofel was a customer and debtor of theirs, residing at San Juan del Sur, near Bivas, in the State of Hicaraugua. Ohristofel was desirous of discharging his obligations to the plaintiffs, but was embarrassed in doing so by the infrequency of communication between Bivas and Panama, and the want of a system of exchange enabling him to transmit funds safely and expeditiously from one place to the other. Under these circumstances the plaintiffs consulted Hourquet & Poylo, a business firm at Panama, as to the best manner of collecting the debt. The plaintiffs were informed by Hourquet & Poylo that Ban Bunnels was a correspondent of theirs residing at Bivas, and that the collection could probably be made through him, and offered to transmit a draft on Ohristofel to Bunnels, for that purpose. Thereupon the plaintiffs made their draft on Christofel at sixty days for $1,000 payable to Hourquet & Poylo, who indorsed the same to Runnels and forwarded it to him at Bivas for collection. In due time it was received by Bunnels, and at its maturity was paid to him, in Columbian currency.
It becomes important now to determine the legal obligations and duties of the parties toward each other at this stage of the transaction. In the collection of the draft Bunnels acted as the mere agent of the plaintiffs, and had no interest in the proceeds except, perhaps, a lien thereon for the value of his services in making the collection. He had no right or authority to use such funds for his individual purposes, and his sole duty in relation to them, was that of their transmission to his principals. The nature of the business impliedly authorized him, to make such transmission according to the usages of trade, and in the absence of such usages to do so by some other method which should, in the exercise of reasonable care and prudence, promise to accomplish the object intended. It was, therefore, open to him to transmit the funds received in specie as they were collected, or he could have purchased a bill of exchange, if opportunity served, at that place, and transmitted that; of he could remit them in any other way deemed most safe, convenient and
desirable to him, subject to the approval by his principals, of. the method adopted. It does not appear in the case but-that Runnels was a merchant or banker and accustomed to sell exchange upon foreign places. However that may be, he-in fact sent to the plaintiffs, February 4, 1879, immediately upon collection, the proceeds thereof, less cost of collection and exchange, by the draft in suit. This was his own draft upon the defendant Morris, at Hew York, at ninety days’ sight. Upon the receipt of this draft by the plaintiffs, it was accepted by them and remitted to Hew York, for presentation to, and acceptance by the drawee, and the same was accepted by him February 26, 1879.
The sole question in the case is whether the plaintiffs were
bona fide
holders for value of the draft. We cannot doubt but that they were. If on receiving the funds in question Runnels had purchased with them a bill of exchange or draft from a merchant, or banker, according to the usages of trade, and trans-, mitted the same to the plaintiffs, no question could arise but that he acted as their agent in the transaction, and they would have been
bona fide
holders of such papel within all definitions of that character, and we are unable to see the difference in principle between such a ease and the transaction in question. The funds collected by Runnels were, until they consented to their appropriation by him, at all times the property of the plaintiffs. Runnels’ sole duty in relation to them was that of transmission to the plaintiffs, and until that duty was legally performed he held them in a fiduciary capacity for a specified purpose. His duty of transmission could not be performed by remitting his own obligation, payable at a future day, except by the consent and approval of the plaintiffs. Until this consent and approval was given the funds remained the property of the plaintiffs, and any use of them by Runnels before that time would have constituted a violation of his duty' to his principals, which it cannot be presumed he committed.
■Doubtless the lack of adequate facilities of exchange between Riv s and Panama induced Runnels to offer, and the plaintiffs to accept, the mode of remittance adopted, and it was entirely
competent for Runnels to propose, and for the plaintiffs to accept such a solution of the inconveniences of the situation; but no title to the funds collected passed to Runnels, until the acceptance of the draft by the plaintiffs. After that and not till then he was authorized to use those funds as his own.
By the original employment the plaintiffs contemplated no credit to Runnels and he had no right to, and it does not appear that he even supposed, he acquired any right to use the funds in question for his own purposes, or that he ever did so use them. The conventional relation of debtor and creditor never existed between Runnels and the plaintiffs until the acceptance of his draft upon Morris, and then those relations were governed by the liabilities existing by force of the draft, alone.
In accordance with the rule which precludes a court from presuming a violation of duty by an individual, we must assume that Runnels performed his duty, and his whole duty, to the plaintiffs as their agent. This required him to safely keep their funds until he had transmitted them according to the usage of trade, or in some other mode approved by them. The legal effect of the method adopted was to transfer the title to the funds collected, to Runnels simultaneously with the acceptance by the plaintiffs of Runnels’ draft upon Morris, and was the precise equivalent of the payment of so much money in the immediate purchase of a draft or bill of exchange by one person from another. We are, therefore, of the opinion that the plaintiffs were the
bona fide
holders for value of the draft in suit and are entitled to recover thereon.
The General Term conceded that the plaintiffs were
bona fide
holders for value of the bill before acceptance, but deny them that character after acceptance as against the acceptor. We think the concession is fatal to the conclusion reached by that court.
It is said that the
Farmers & Mechanics’ Bank
v.
Empire Stone Dressing Co.
(5 Bosw. 290) is authority for the position. It is true that some expressions of the learned judge writing in that case may justify the citation, yet it should be considered
that those remarks were unnecessary to the decision of the case, and the same court have twice since then refused to follow it.
We conceive the rule there laid down finds no support in the doctrines of the text-writers or the reported cases.
(Philbrick
v. Dallett, 2 J. & S. 370;
First Nat. Bank of Portland
v.
Schuyler,
7 id. 440; Parsons on Bills and Notes, 323; Daniels on Neg. Inst., § 534; Edwards on Bills [2d ed.], 410.)
If a party becomes a
bona fide
holder for value of a bill before its acceptance, it is not essential to his right to enforce it against a subsequent acceptor, that an additional consideration should proceed from him.to the drawee. The bill itself implies a representation by the drawer that the drawee is already in receipt of funds to pay, and his contract is that the drawee shall accept and pay according to the terms of the draft. (Parsons on Bills, 323, 544;
Arpin
v.
Chapin,
Mass. Sup. Ct., Oct., 1885.) The drawee can of course upon presentment refuse to accept a bill, and in that event the only recourse of the holder is against the prior parties thereto ; but in case the drawee does accept a bill, he becomes primarily liable for its payment, not only to'its indorsees but also to the drawer himself.
The delivery of a bill or check by one person to another for value implies a representation on the part of the drawer that the drawee is in funds for its payment, and the subsequent acceptance of such check or bill constitutes an admission of the truth of the representation, which the drawee is not allowed to retract. (Daniels on Neg. Inst. 534; Parsons on Bills, 323, 544, 545.) By such acceptance the drawee admits the truth of the representation, and having obtained a suspension of the holder’s remedies against the drawer, and an extension of credit by his admission, is not afterward at liberty to controvert the fact as against a
bona fide
holder for value of the bill.
The payment to the drawer of the purchase-price furnishes a good consideration for the acceptance which he then undertakes shall be made, and its subsequent performance by the drawee is only the fulfillment of the contract which the drawer .represents he is authorized by the drawee to make.
The rule that it is not competent for an acceptor to allege as a defense to an action on a bill that it was done without consideration, or for accommodation, as against a
bona fide
holder for value of such paper, flows logically from the conclusive force given to his admission of funds, and' is elementary. (Daniels on Neg. Inst., §§ 532-534; Edwards on Bills, 410;
Harger
v.
Worrall,
69 N. Y. 371;
Com. Bk. of Lake Erie
v.
Norton,
1 Hill, 501;
Robinson
v.
Reynolds,
2 Q. B. 196, 211;
Hoffman
v.
Bank of Milwaukee,
12 Wall. 181.)
•Of course the cases determined upon the ground that the payee of such paper received it to apply upon an antecedent debt, or that it had been unlawfully diverted from .the purpose for which it was designed, have no application to the circumstances of this case.
The judgments- of the courts below should, therefore, be reversed and a new trial ordered, with costs to abide the result.
All concur.
Judgment reversed.