Barber v. Lyon.

placed the wagon on the side of the road, as if for delivery, and the defendant handed him a paper, evidently the accepted order, and asked him if he would accept of that. The plaintiff said he would accept of it as far as it went. How far did it go? Or what were its contents? In the absence of the order, which the plaintiff refused to produce, and under the testimony, the jury were left to infer that it was an unconditional accepted order for the delivery of the wagon to the defendant, and they found, most probably, in accordance with the facts. At all events their verdict was warranted by the evidence, and cannot be disturbed. There certainly was no evidence on which to support a contract of sale and purchase of the wagon; the defendant declaring, as he drove off with the wagon, that he would not be responsible for a single mill.

There was no objection to the evidence that the plaintiff took the wagon left by the defendant in the road. It was proper to prove what was said or done by either party, at the time the parties met, and when the defendant received the wagon.

Whether the proof of what the plaintiff said, at the time he showed the order to the witness, Drake, was proper, it is not necessary to determine. The question was objected to; but it does not seem to have been insisted upon by the plaintiff's counsel, nor decided by the justice.

The judgment of the justice must be affirmed, with costs.

[SARATOGA GENERAL TERM, July 8, 1856. C. L. Allen, Paige, James and Rosekrans, Justices.]

SMITH US. THE PRESIDENT, DIRECTORS AND COMPANY OF THE ESSEX COUNTY BANK.

Where the payee of a note which is made payable at a bank, indorses the same and deposits it with the bank for collection, the bank becomes the agent of the payee, and not of the maker; and after the note has been paid, no omission or misapplication of the money by the bank can prejudice the maker, he being, by such payment, absolutely discharged from the debt.

Hence, if the maker calls at the bank and pays the amount due upon the note, and takes it up, and the bank neglects to pay over the money to the holder, the maker cannot maintain an action against the bank, founded upon such neglect to account to the holder for the money.

THIS

HIS was an appeal from a judgment of the county court of Essex county, affirming the judgment of a justice of the peace. The complaint averred that one Hiram Gates, on the 18th of January, 1854, paid to the defendants the sum of $83, or thereabouts, to be applied upon a certain note made by Gates to Barney B. Boynton for the sum of $81.82, and dated November 14, 1853, and the interest, and protest fees on the same, which sum the defendants promised to pay to Boynton; but that they had neglected and refused to pay it, and that on the 29th day of July, 1854, Gates, for a valuable consideration, transferred his claim for said money, so paid, to the plaintiff. The defendants denied the complaint, and for a further answer averred that if the money was ever paid, it was paid to the defendants as agents of Boynton; and they further answered that before the assignment Boynton prosecuted Gates for the same debt, and Gates put in his defense to the action, and it was decided against him.

On the trial, Gates was introduced and sworn as a witness for the plaintiff, and testified that on the 18th of January, 1854, he paid and took up the note; that the amount was $81.80, or $82.80 odd cents; that he paid it to the teller, at the counter of the bank, in $10 Essex county bills, except one $5 bill on the same bank, and received back the change. On his crossexamination, he further testified that it was about 2 o'clock P. M. when he paid the money. No one was in the bank, at the time, except the teller and himself and Mr. Thompson, the

Smith v. President &c. of Essex County Bank.

cashier; that he never went into the bank and talked about the note and took out his money, but once; that it was done in a great hurry, as he was about starting for Burlington at the time. That he got the money from Mr. Talmadge some two or three weeks previous, and took it that day from his bureau drawer. That Thompson sat at the stove, reading a newspaper, at the time, and did not seem to notice his paying the note to the teller. The witness did not know, at the time he paid it, whether the note was left for collection, or whether the bank owned it. Mr. Boynton, the payee of the note, testified that the bank had never paid him the amount of the note. That it was left by him with the bank for collection, where it was made payable. That he had a conversation with Gates, the day following the protest of the note, which was the 16th of January, 1854, and requested payment of the note. Gates said he would attend to it. Some three or four days after that he spoke to Gates again about it, and Gates said if he got the money on that $600 note he would pay it on his return from Burlington; and said he had $400 in his room, which he had been keeping for another purpose. He met him once again, the second week after the protest, and spoke to him again about the note. He then went to his room and showed him the note. He then went to the bank, and was informed the note was not paid, and that if Gates had it, he had it wrongfully. Martin A. Seymour, the teller of the bank, testified, for the defendants, that on the day Gates swore the note was paid, he was in the bank and talked about it; it was then protested. The witness showed him the note and another one which was becoming due to Gates. Gates expressed disappointment that the note was not yet due, as he expected to pay the Boynton note with its avails. He handed the two notes to Gates to compare, and never saw them after. That Gates did not pay any thing on the note. He missed it in about three weeks after its maturity. That they generally marked the word "paid" on notes, when they were taken up. That there was no entry on the books of the bank of the note's being paid. That they made an examination every night, to see if their amount of cash agreed with

Smith v. President &c. of Essex County Bank.

their entries. That they did so on the evening of the 18th of January, 1854. At or about that day Gates made application at the bank to have a large note discounted, which was declined. The witness, for the sake of buying peace, as he swore, once of fered to pay one half the note, but was advised that it would not answer. It appeared that one other note was produced by the plaintiff, which had been taken up at the bank, but had not been marked with the word "paid," and also that the witness had once overpaid Mr. Comstock $50 in a count of money, which Mr. C. afterwards returned to the Bank.

Mr. Thompson, the cashier, testified that he was in the bank on the 18th of January, 1854, and was present when Gates came in to look at the notes. The witness had been conversing with Gates, by the stove, outside the counter. Gates had a note made by Reynolds and Tufts for $600, and wanted the witness to discount it individually, which he declined to do. He then went to the counter and conversed with Seymour, in relation to the notes; saying, as he went, "if he could not get money on his paper, he could not pay." Seymour showed him some notes, and Gates said he was in hopes one note would pay the other. Did not see him pay Seymour any money, and thinks if he had, he must have seen it. The cash account of that day agreed with the books. The note was never owned by the bank. It was left there by Boynton for collection. All the parties live in Keeseville. It appeared from all the evidence that Gates was never in the bank but once, to look at the notes. Harvey Car ter testified that he was a justice of the peace of Chesterfield, in June, 1854. That in that month there was a suit tried before him, in which B. B. Boynton was plaintiff and Hiram Gates defendant. The action was brought to recover the amount of the identical note, which Gates in this suit claims to have paid the bank, and the defense to that suit was, such payment. Mr. Seymour was sworn and testified, and the justice rendered judgment for the plaintiff against the defendant Gates, for the amount of the note and interest, on the 5th of June, 1854. This evidence was objected to by the plaintiff's counsel as immaterial and irrelevant, but was received by the court.

Smith v. President &c. of Essex County Bank.

The testimony being closed, the court, after taking time to deliberate, rendered judgment in favor of the plaintiff for $89.69, damages and costs, which the Essex county court affirmed, and the defendants appealed to this court.

Finch & Smith, for the plaintiff.

S. Ames and A. C. Hand, for the defendants.

By the Court, C. L. ALLEN, P.J. The evidence on the part of the plaintiff shows that the note was made payable at the defendant's bank and indorsed by Boynton, and there left for collection. That after maturity and protest it was paid by Gates to Seymour, the teller of the bank, who received it from the teller, as he swears, when he paid it. This is the theory of the plaintiff's case, and the justice has so found the facts, although they are denied by the defendants. Admitting the finding to be correct, I do not perceive how the plaintiff can be legally entitled to recover. The bank was the agent of Boynton, and not of Gates, and no omission or misapplication of the money could prejudice Gates, after payment. If he testified to the truth when he swore that he paid the note to Seymour, and took it up, then such payment was an absolute discharge of him, and whether Seymour, as teller of the bank, accounted for it, or paid it over to Boynton, was a matter of no sort of consequence, so far as he, Gates, was concerned. He had entirely absolved himself by paying the note, at the place where it was made payable, and thereby canceled his debt. &c. Howard v. Ives, 1 Hill, 263. cy, 91, note 274, 5. 2 Kent's Com. 630. Bank v. Albany City Bank, 3 Seld. 459. 2 Comst. 126. Com. Bank of Penn. v. Union Bank of N. Y., 1 Kern. 203. Allen v. Merchants' Bank of N. Y., 22 Wend. 215, 225. 2 Parsons on Cont. 126. And see 3 Hill, 560; 1 Peters, 50; 12 Conn. Rep. 304; 23 Pick. 330; 15 Wend. 482; 20 id. 321; 12 id. 178; 4 Burr. 1984; 5 Denio, 639; 3 Comstock, 327.)

(Story on Bills, sec. 201, Dunlap's Paley on AgenMontgomery County Colvin v. Holbrook,