Christianson, Ch. J.
The controversy before us involves the liability of the defendant bank upon a certain check which it received from the plaintiff for collection. The material facts are substantially as follows:
In June, 1918, the plaintiff was the state’s attorney of Eolette county in this state. • Prior to June 10, 1918, one I. M. Ingebretson was the treasurer of said county. Ingebretson had issued certain fraudulent tax receipts and by means thereof collected moneys from taxpayers of that county. The fraudulent practices were discovered, and on June 1, 1918, or thereabouts, Mr. Ingebretson executed and delivered to the plaintiff a check in the sum of $1,388.60, drawn upon the Eolette County Bank of St. John, North Dakota, the proceeds of which were to be used by the said Verret in reimbursing the persons so defrauded. The plaintiff testified that at the time Ingebretson gave him the check he asked him (Verret) “to take that check to the State Bank of Eolia, and not the other bank, and deposit it.” On June 10, 1918, the plaintiff Verret took the check to the defendant bank and, after indorsing it, delivered it to that bank for deposit and collection. He received from the cashier of the bank a duplicate deposit slip of the usual form. Verret testified that he informed the cashier of the defendant bank of the purpose for which the check had been given, and asked him not to put it in his (Verret’s) general account, but “to put it in a deposit by itself.” It was stipulated as a fact that the defendant bank on the same day forwarded the check to the Capital National Bank of St. Paul for collection and credit; “that the same was received by the Capital National Bank of St. Paul, Minnesota, on June 11, 1918, and on the same day forwarded by the said Capital National Bank to the Federal Eeserve Bank of Minneapolis, Minnesota; that said check was received by the Federal Eeserve Bank of Minneapolis, Minnesota, on June 11, 1918, and that on the same day, said Federal Eeserve Bank of Minneapolis, Minnesota, forwarded same by mail direct to the Eolette County Bank of St. John, North Dakota, the drawee bank therein; that thereafter and on the 20th day of July, a. d. 1918, not having collected said check from [223]*223the Eolette County Bank, on which the same was drawn, the said Federal Eeserve Bank charged back to the Capital National Bank of St. Paul, Minnesota, the said check, and so advised the Capital National Bank thereof; that on July 22, 1918, the said Capital National Bank of St. Paul, Minnesota, charged back to the State Bank of Eolia, North Dakota, the said check, and so advised said defendant bank of the same; that on the 21st day of July a. n. 1918, a representative of the Federal Eeserve Bank of Minneapolis, Minnesota, appeared personally at the Eolette County Bank of St. John, North Dakota, and demanded from the officers of said Eolette County Bank all cash letters of the Federal Eeserve Bank of Minneapolis, Minnesota, that were then unanswered, and, among such papers, received the check sued upon in this action; that on July 22, 1918, said representative did duly present the said check for payment to the said .Eolette County Bank of St. John, North Dakota, and payment thereof was refused; that on July 26, 1918, the said check was duly returned by the Federal Eeserve Bank of Minneapolis, Minnesota, to the Capital National Bank of St. Paul, Minnesota; and that same was immediately forwarded by said Capital National Bank of St. Paul, Minnesota, to the State Bank of Eolia, North Dakota; that on the 30th day of July, 1918, said State Bank of Eolia, North Dakota, notified plaintiff that the said check had not been paid by the Eolette County Bank- of St. John, North Dakota, and that same had been on the 30th day of July, a. d. 1918, charged back to plaintiff by defendant.” It was further stipulated as a fact, “that the plaintiff in this action was notified verbally by the defendant bank on the 24th day of July, 1918, that the check sued upon in this action had been presented to the Eolette County Bank and payment refused.” It was further stipulated “that on the 22d day of July, 1918, the Eolette County Bank was closed by the State Banking Department because of its insolvency, and thereafter a receiver was appointed for said banking corporation by the district court of Eolette county, North Dakota.”
The evidence shows that the defendant bank, in the usual course of business, received from the Capital National Bank of St. Paul a card acknowledging the receipt by said latter bank of the check for collection. Plaintiff Verret testified: “On two different occasions between the 10th day of June and the 22d day of July, 1918, I inquired [224]*224from the officers of the State Bank of Bolla whether or not this check in controversy had been paid and accepted, and whether or not I could draw and issue checks upon the deposit that I made in that bank and sued upon in this case; that on those two occasions I was informed by the persons in charge of the business of the defendant that I could draw checks on that deposit, and that they would be honored by the State Bank of Bolla, that so far as they knew the check had been paid by the Bolette .County Bank on which it had been drawn.”
The cashier of the defendant bank testified that he had no recollection of the conversations referred to by the plaintiff. The deposit ledger of the Bolette County Bank at St. John showed that at the time Ingebretson drew his check he, in fact, had no money on deposit at the bank; but that at later dates he made deposits and from and after July 6, 1918, had sufficient money on deposit to care for the check.
The plaintiff Yerrct testified that he is a banker as well as an attorney, and that he did not expect the defendant bank to present the check to the drawee bank in any other manner than that in which it was done. The testimony, further, is to the effect that the check was forwarded for collection in the usual course, and that ordinarily no further inquiry or tracer would be sent by the forwarding bank.
Manifestly the liability of the defendant, if any, is predicated on negligence,—negligence either on the part of the defendant bank, or on the part of one of its subagents. As pointed out by this court in Farmers State Bank v. Union Nat. Bank, 42 N. D. 449, 173 N. W. 790, there are, in this country, two conflicting doctrines as to the liability of banks which undertake the collection of commercial paper at a distance. One has become known as the “New York rule” and the other as the “Massachusetts rule.” Under the so-called New York rule, the first bank is responsible for the conduct of its correspondents and subagents as fully as though it had performed the entire service itself. According to the Massachusetts rule the bank which receives for collection out-of-town commercial paper is responsible only for its own negligence, and not for the negligence of its correspondents or subagents. This court has not, as yet, been required to determine which rule ought to be adopted in this state. Nor do we believe it is necessary to determine that question in this ease. Negligence forms the basis of liability under both rules. There [225]*225is no liability under either rule, unless there is some negligent act on the part of either the first bank, or one of its subagents, resulting in loss to someone. We do not believe that the facts in this case establish negligence, either on the part of the first bank or on the part of any of its correspondents.
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Christianson, Ch. J.
The controversy before us involves the liability of the defendant bank upon a certain check which it received from the plaintiff for collection. The material facts are substantially as follows:
In June, 1918, the plaintiff was the state’s attorney of Eolette county in this state. • Prior to June 10, 1918, one I. M. Ingebretson was the treasurer of said county. Ingebretson had issued certain fraudulent tax receipts and by means thereof collected moneys from taxpayers of that county. The fraudulent practices were discovered, and on June 1, 1918, or thereabouts, Mr. Ingebretson executed and delivered to the plaintiff a check in the sum of $1,388.60, drawn upon the Eolette County Bank of St. John, North Dakota, the proceeds of which were to be used by the said Verret in reimbursing the persons so defrauded. The plaintiff testified that at the time Ingebretson gave him the check he asked him (Verret) “to take that check to the State Bank of Eolia, and not the other bank, and deposit it.” On June 10, 1918, the plaintiff Verret took the check to the defendant bank and, after indorsing it, delivered it to that bank for deposit and collection. He received from the cashier of the bank a duplicate deposit slip of the usual form. Verret testified that he informed the cashier of the defendant bank of the purpose for which the check had been given, and asked him not to put it in his (Verret’s) general account, but “to put it in a deposit by itself.” It was stipulated as a fact that the defendant bank on the same day forwarded the check to the Capital National Bank of St. Paul for collection and credit; “that the same was received by the Capital National Bank of St. Paul, Minnesota, on June 11, 1918, and on the same day forwarded by the said Capital National Bank to the Federal Eeserve Bank of Minneapolis, Minnesota; that said check was received by the Federal Eeserve Bank of Minneapolis, Minnesota, on June 11, 1918, and that on the same day, said Federal Eeserve Bank of Minneapolis, Minnesota, forwarded same by mail direct to the Eolette County Bank of St. John, North Dakota, the drawee bank therein; that thereafter and on the 20th day of July, a. d. 1918, not having collected said check from [223]*223the Eolette County Bank, on which the same was drawn, the said Federal Eeserve Bank charged back to the Capital National Bank of St. Paul, Minnesota, the said check, and so advised the Capital National Bank thereof; that on July 22, 1918, the said Capital National Bank of St. Paul, Minnesota, charged back to the State Bank of Eolia, North Dakota, the said check, and so advised said defendant bank of the same; that on the 21st day of July a. n. 1918, a representative of the Federal Eeserve Bank of Minneapolis, Minnesota, appeared personally at the Eolette County Bank of St. John, North Dakota, and demanded from the officers of said Eolette County Bank all cash letters of the Federal Eeserve Bank of Minneapolis, Minnesota, that were then unanswered, and, among such papers, received the check sued upon in this action; that on July 22, 1918, said representative did duly present the said check for payment to the said .Eolette County Bank of St. John, North Dakota, and payment thereof was refused; that on July 26, 1918, the said check was duly returned by the Federal Eeserve Bank of Minneapolis, Minnesota, to the Capital National Bank of St. Paul, Minnesota; and that same was immediately forwarded by said Capital National Bank of St. Paul, Minnesota, to the State Bank of Eolia, North Dakota; that on the 30th day of July, 1918, said State Bank of Eolia, North Dakota, notified plaintiff that the said check had not been paid by the Eolette County Bank- of St. John, North Dakota, and that same had been on the 30th day of July, a. d. 1918, charged back to plaintiff by defendant.” It was further stipulated as a fact, “that the plaintiff in this action was notified verbally by the defendant bank on the 24th day of July, 1918, that the check sued upon in this action had been presented to the Eolette County Bank and payment refused.” It was further stipulated “that on the 22d day of July, 1918, the Eolette County Bank was closed by the State Banking Department because of its insolvency, and thereafter a receiver was appointed for said banking corporation by the district court of Eolette county, North Dakota.”
The evidence shows that the defendant bank, in the usual course of business, received from the Capital National Bank of St. Paul a card acknowledging the receipt by said latter bank of the check for collection. Plaintiff Verret testified: “On two different occasions between the 10th day of June and the 22d day of July, 1918, I inquired [224]*224from the officers of the State Bank of Bolla whether or not this check in controversy had been paid and accepted, and whether or not I could draw and issue checks upon the deposit that I made in that bank and sued upon in this case; that on those two occasions I was informed by the persons in charge of the business of the defendant that I could draw checks on that deposit, and that they would be honored by the State Bank of Bolla, that so far as they knew the check had been paid by the Bolette .County Bank on which it had been drawn.”
The cashier of the defendant bank testified that he had no recollection of the conversations referred to by the plaintiff. The deposit ledger of the Bolette County Bank at St. John showed that at the time Ingebretson drew his check he, in fact, had no money on deposit at the bank; but that at later dates he made deposits and from and after July 6, 1918, had sufficient money on deposit to care for the check.
The plaintiff Yerrct testified that he is a banker as well as an attorney, and that he did not expect the defendant bank to present the check to the drawee bank in any other manner than that in which it was done. The testimony, further, is to the effect that the check was forwarded for collection in the usual course, and that ordinarily no further inquiry or tracer would be sent by the forwarding bank.
Manifestly the liability of the defendant, if any, is predicated on negligence,—negligence either on the part of the defendant bank, or on the part of one of its subagents. As pointed out by this court in Farmers State Bank v. Union Nat. Bank, 42 N. D. 449, 173 N. W. 790, there are, in this country, two conflicting doctrines as to the liability of banks which undertake the collection of commercial paper at a distance. One has become known as the “New York rule” and the other as the “Massachusetts rule.” Under the so-called New York rule, the first bank is responsible for the conduct of its correspondents and subagents as fully as though it had performed the entire service itself. According to the Massachusetts rule the bank which receives for collection out-of-town commercial paper is responsible only for its own negligence, and not for the negligence of its correspondents or subagents. This court has not, as yet, been required to determine which rule ought to be adopted in this state. Nor do we believe it is necessary to determine that question in this ease. Negligence forms the basis of liability under both rules. There [225]*225is no liability under either rule, unless there is some negligent act on the part of either the first bank, or one of its subagents, resulting in loss to someone. We do not believe that the facts in this case establish negligence, either on the part of the first bank or on the part of any of its correspondents. The only charge of negligence which plaintiff makes against the defendant bank itself is that its employees told him on two occasions between June 10th and July 22d that, so far as they knew, the check was paid, and that the bank would honor cheeks drawn by the plaintiff against such special account. The plaintiff did not attempt to designate the dates of the two conversations with any greater particularity than already indicated. Nor did the plaintiff claim that the officers of the bank in such conversations said that the check had been paid, but merely that they said that, so far as they knew, it had been paid. In other words, that they had received no notice that it had been dishonored. This was apparently the sense in which plaintiff understood it, for he went back a second time and made the same inquiry and received the same information. And, apparently, he was not misled by either statement; for while he says he was advised the bank would honor checks drawn against the special account, he refrained from drawing a single check, or in any manner-attempting to distribute the funds represented by the check.
The cashier testified that this check was received the same as any other check, and that plaintiff was immediately given credit therefor on the bank books. He further testified: “I may say in explanation, had this cheek been brought in by a stranger or someone we didn’t know he wouldn’t have received credit until we found out that the check was o. k., but in case of a responsible depositor we give credit light away, with the understanding, as our pass books read, if checks are not collected they will be charged against the account.” It should be borne in mind that at the time plaintiff deposited the check he talked with the cashier. Whatever specific information the bank was given regarding the check was given to the cashier. There is no showing that any other officer was present, or that plaintiff ever informed any other officer as to the purpose of the check. Plaintiff does not say that the two subsequent conversations were with the cashier, but merely with "officers” of the bank. The cashier testified that he had no recollection [226]*226of having had such conversations with the plaintiff. Hence,' it is at least as likely, if not more likely, that such conversations were had with other officers of the bank, whose information as to the transaction was limited to what was disclosed by the entries in the bank books.
Plaintiff testified that at the time he deposited the check he informed the cashier: “That I did not want to draw on this deposit until I knew that the checlc had been paid
On cross-examination, the following question was propounded to the plaintiff, and the following answer given by him:
Q. Did you at that time (when the check was deposited) tell Mr. Butterwick (the cashier) that you wouldn’t draw upon this deposit in the State Bank of Bolla until you found out that the check was collected, or words to that effect ?
A. To the best of my recollection I did say that or words to that effect, and that is the reason I put it in a special deposit and didn’t put it with my other deposit. ... As a matter of fact I didn’t know whether that check was any good or not.
The plaintiff, Yerret (who acted as his own attorney on the trial of the case); propounded the following question to Butterwick, the cashier of the defendant bank:
“Q. Do you remember that I told you in that conversation when I left the check with you, that I was anxious to find out as soon as the check was paid so that I could make out checks and pay off the taxpayers the money they had coming, and that I wouldn’t draw on that deposit until I found it was paidf”
According to plaintiff’s testimony he was never advised that the check was paid. He did not so construe the statements made to him by the officers of the bank. He was twice given the same information. The information received the first time was of sueh nature that he did not feel warranted in drawing checks. The second time he received precisely the same answer that he received the first time. There is no contention that the answers were untrue. There is no foundation in the evidence for any claim that the defendant bank itself owed any duty to make any inquiry regarding, or effort to collect, the check other than was done. We find no evidence of actionable negligence on the part of the bank itself.
[227]*227Nor do we find any evidence tending to establish actionable negligence on the part of any of the bank’s subagents. And on oral argument it was virtually admitted that such negligence had not been shown. It will be noted that the facts stipulated clearly establish that all subagents acted with the greatest possible despatch in forwarding the check. The only subagent to whom negligence could possibly be charged is the Federal Reserve Bank. That bank forwarded the check promptly to the drawee bank (which was the only bank in St. John). Having received no answers to its forwarding letters, it sent a personal representative to the drawee bank on July 21st. There is no contention that such personal representative should have been sent before, or that the Federal Reserve Bank failed to perform any other duty resting upon it.
It follows, from what has been said, that the judgment appealed from must be reversed. It is so ordered.
Bronson, Robinson, and Birdzell, JJ., concur.