Merchants' Exchange National Bank of Memphis v. Cardozo — 35 N.Y. Super. Ct. 162

Majority

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THE MERCHANTS’ EXCHANGE NATIONAL BANK OF MEMPHIS, Plaintiff and Appellant, v. ABRAHAM H. CARDOZO and Another, Defendants and Respondents.

Headnote

I. Acceptance of Bill of Exchange.

1. Promise to accept, when it sufficiently complies with § 8, title 3, chap. 4, part 3, R. S. of N. Y, to constitute an actual acceptance.

1. A letter containing the following clauses—“ We can at present only authorize you to draw at sight for $5,000, at the very outside, and then do not make any more sight drafts until you hear from us again.” “ Your bank at Memphis has made inquiries about us, of our bank here. This we got direct from the cashier, and he told us he was satisfied they would take any bills you might wish to make ”—is a sufficient eompliam.ee.

• 1 And this, although the letter opens with an acknowledgment of the receipt of a letter from the writer’s correspondent, and before the clause of authorization speaks of being at a loss what to say about making cash advances, of the condition of the money market, of their funds being pretty well tied up, and then says, “We were in hopes that you would be able to negotiate time bills, say, at any rate, thirty days, which would enable us to get the cotton here, at least before the draft matured.”

a. Such a letter contains no restriction on the authority to draw for $5,000, nor does it call for a single draft, nor is it merely an authority to draw against Mis of lading for cotton, nor an authority contingent on an inability to negotiate time bills.

3. Sight Bills come within "the Statute.

II. Corporation.—Evidence of its Existence, what sufficient.

1. A copy of the certificate of its organization, certified to by the Comptroller of the Currency, as required by act of Congress under which it was incorporated, and the certificate of the Comptroller, authorizing it to commence business, together with other facts tending to show it had acted as a corporation under the certificate, is sufficient.

HI. Certificate of Organization, General Objection to.

1. Such objection raises only the questions of materiality, relevancy, and competency.

3. Such certificate is material, relevant, and competent, on the issue, as to plaintiff’s corporate existence.

IF. National Banks. —Eighteenth Section of Act of Congress

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CREATING THEM.—COMPLIANCE WITH, AS TO PUBLISHING CERTIFICATE of Comptroller of Currency.

1. It is not necessary, to enable a national bank to maintain an action, to show a compliance with this section, as to publication.

V. Evidence.—Letters and Papers referred to in a Document read in Evidence.

1. Not always necessary for the party reading the document, to produce and read the letters, etc., referred to in it.

In this case, such production held unnecessary.

Before Monbll, Curtis, and Sedgwick, JJ.

Decided November 30, 1872.

TMs action was "brought to recover of and against defendants the amounts of two drafts; one for $250, dated Memphis, Tenn., December 8, 1868, drawn by W. S. Bearden on the defendants at sight, and the other for $135, dated Memphis, December 9, 1868, drawn by W. S. Bearden, agent, on defendants at sight. The drafts were endorsed and delivered by Bearden to the plaintiff. These drafts had never been accepted by defendants, but plaintiff claimed that before the drafts were drawn, they had promised in writing to accept them, and that they had received the drafts and paid value therefor, relying on defendants’ promise.

This promise to accept was said to be contained in the following letter:

“ New York, Nov. 6th, 1868.

“Mr.W. S. Bearden, Paducah, Ky.

“ Dear Sir :—Tour favor of the 31st ultimo is at hand, and contents had our attention. We are pleased to see that you are in such good spirits, and that your prospects are so good, but are at a loss what to say about making cash advances at present. Our money market is in a horrible position, and none to be had. Parties are now paying from a J to | per cent, per day for money. The banks are not doing anything, and our own funds are pretty well tied up in old tobacco, which

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we cannot sell at present. We were in hopes that you would "be able to negotiate time bills, say, at any rate, 30 days, which would enable us to get the cotton here at least before the draft matured. We can, at present, only authorize you to draw at sight for five thousand dollars, at the very outside, and then do not make any more sight drafts until you hear from us again, as, if our market keeps this way, we cannot tell what to do, and do not wish to put ourselves in a condition to force sales.

“ Tour bank at Memphis has made inquiries about us, of our bank here. This we got direct from the cashier, and he told us he was satisfied that they would take any bills you might wish to make. We are desirous of doing something about the Perkins matter, and, if you or Mr. Turner think that you can make the amount by suing, would do so at once. We enclose you a letter from Col. Martin, in reference to this matter,- and wish you would look fully into the matter, and let us know what can be done. Probably Mr. Perkins may offer to make some settlement, and we would willingly make a little loss to have it closed at once. Hoping soon to hear from you again, we are

‘ ‘ Tours respectfully,

“ A. H. Cardozo & Co.”

The above facts fully appeared on the trial.

The plaintiff on the trial read in evidence, under defendants’ objection, a copy of the organization certificate of plaintiff, dated June 24th, 1865, certified by the Comptroller of the Currency, as required by the act of Congress, under which the plaintiff was incorporated, and the certificate of the Comptroller authorizing plaintiff to commence the business of banking, dated July 8th, 1865, and proved some facts tending to show that it had acted as a corporation under this certificate.

"Upon the plaintiff resting his case, defendants moved

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the court to dismiss the complaint, on the plaintiff’s own evidence, on the grounds :

First. That the plaintiff had not established legally, for the purposes of this action, its corporate existence, nor its corporate right to maintain this action, within either the act of Congress or the statutes of this State.

Second. That the eighteenth section of the act of Congress, creating these national banks, makes it the duty of the association to cause the certificate of the Comptroller of the Currency authorizing banks to commence banking business under that act, to be published in a newspaper in the city or county where the association is located for at least sixty days next after the issuing thereof, and there is no proof here that- there has been any compliance with this provision of the act of Congress.

Third. That it was the duty of the plaintiff to introduce into his case the letter of Mr. Bearden, of 31st October, 1868, which is referred to in the letter of the defendants, of November 6th, 1868, or prove its contents.

The court dismissed the complaint, upon the grounds, among others, that the letter dated November 6th, 1868, from the defendants to W. S. Bearden, was not an unconditional promise to accept, within the meaning of the statute (3 Revised Statutes, 5th edition, page 68, section 8, part 2, chapter 4, title 2).

To which ruling and decision of the court dismissing the complaint, plaintiff then and there duly excepted.

Thereafter judgment was entered against the plaintiff in favor of the defendants, that the defendants recover of and against the plaintiff* their costs and disbursements.

From the judgment plaintiff appeals to the General Term.

Prichard, Choate & Smith, attorneys, and Wm. C. Choate, of counsel for appellant.

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Gratz Nathan, attorney, and of counsel for respondents.

The ground specifically stated "by the court below, for dismissing the complaint, was, that the letter of November 6, 1868, from the defendants to their agent, W. S. Bearden, was not an unconditional promise to accept, within the meaning of section 8, p. 768 of 2 R S. On the trial, no part of the letter was pointed to as making a condition.

The express authority to draw is equivalent to a promise to accept (Barney v. Worthington, 37 N Y. R. 116; Johnson v. Clark, 39 N. Y. R. 217). On the face of the letter no condition or qualification was annexed to the authority given to draw.

The argument for the respondents is, that the letter, "by its contents, appeared-to be an answer to a previous letter written to defendants by Bearden. Whatever Bear-den’s letter may have had in it by way of request, or promise, or representation, the letter of defendants none the less contained an unconditional authority to him to draw. Nor does it appear that Bearden’s letter had referred to the subject of authorizing him to draw on the defendants.

Another suggestion is, that defendants’ letter gave only a restriction or limitation to some authority theretofore given, the nature of which does not fully appear, and did not purport to give an authority for the first time. This is "based upon the words “We can at present only authorize you to draw at sight for $5,000 at the very outside,” etc.

This only refers to an authority given at the time of writing, and has no intimation that any authority was in existence "before the writing.

The only restriction is upon a sum "beyond $5,000. Up to that amount, there was no restriction.

It is further said that the letter manifestly referred to

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a draft of a different character from those in suit—that is, to a single draft of $5,000, and not to several drafts, which in the aggregate were not to exceed $5,000.

The letter does not support this view. It says in the next sentence hut one to that giving the authority, that the cashier of Bearden’s Bank at Memphis had “ told “us he was satisfied they would take any bills you “might wish to make.” The defendants evidently meant to authorize the drawing of more than one bill. It is also argued, that, from the letter, it must have appeared that Bearden was only to draw bills against shipments of cotton for advances on the same. The last extract given from the letter is at variance with this. By that, it appears that defendants expected that Bear-den would make the bills, and that his bank would take them, there being no reference to their being accompanied by bills of lading for cotton, or by anything of that nature.

Again, so far from Bearden’s authority to draw sight bills being in the letter made contingent upon Bear-den’s being unable to “negotiate time bills,” it seems to have been the reverse. The defendants wrote, “We had hopes that you could negotiate time bills; but as you could not do that, we authorize you to draw sight bills.”

The defendants again say, that the authority, if equivalent to an unconditional promise, is not within the statute, because the bills were on sight, and were to be presented only for payment, but not for acceptance ; and that, as there was to be no acceptance, the letter could not be construed to be a promise to accept. We think this is erroneous. Suppose Bearden had procured the plaintiffs to discount these bills in Memphis, the bills at the time having thereon written an acceptance by the defendants, payable in Mew York. The defendants would be liable on that acceptance. Or, it was possible that the bills, by defendants’ consent, might

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have been presented for acceptance before payment was demanded, and in case of acceptance by them, they would be liable on that.

The respondents, the defendants below, claimed that the complaint should be dismissed on the ground ‘£ that the plaintiff has not established legally, for the purposes of this action, its corporate existence nor its corporate right to maintain the action, either within the act of Congress, or the statutes of this State.” This was, in substance, that no evidence had been given upon which to go to the jury, on the issue of the existence of the plaintiff, or the corporation described in the complaint.

There certainly was some evidence as to whether or not there was such a corporation as the plaintiff. A certified copy of the certificate of its organization was put in evidence, under objection.

The objection was general in form, and at the most could raise only the question of the materiality, relevancy, and competency of the proposed proof. There was no objection that the certificate was not genuine, or that its genuineness was not proven. On the contrary, it is stated in the case, as a fact, that the copy put in evidence was certified by the Comptroller of the Currency, as required by the act of Congress. This evidence was relevant and material to the issue, and, in connection with other facts, tending to show that the plaintiff had acted as a corporation under the certificate, was sufficient to take the case to the jury.

The second ground stated by defendants’ counsel for a dismissal of the complaint was, that there was no proof that there had been a compliance with that part of the 18th section of the act of Congress, creating National Banks, which made it the duty of this association to cause the certificate of the Comptroller of the Currency, referred to in the section, to be published in a newspaper, etc.

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The objection was not material, for the section does not say that the corporation is not to commence business, or to be deemed to be organized, until such publication. On the contrary, the certificate must be, that the association has complied with all the provisions of the act required to be complied with, before being entitled to commence the business of banking under the act.

The third and last ground taken by the defendants’ counsel for dismissing the complaint was, that it was the duty of the plaintiff to introduce into his case the letter of Mr. Bearden, referred to in the letter authorizing him to draw, or prove its contents. We have seen that the plaintiff had given proof of an unconditional authority to Bearden to draw, and therefore he was not called upon to produce anything further on that point.

The ground, among others, on which the court dismissed the complaint, and which was the only ground specified by the court, as has been before stated, was the one we examined in the first instance.

After reviewing all the grounds, both that stated by the court, and those by the defendants’ counsel, we come to the conclusion that the complaint should not have been dismissed.

A new trial is therefore ordered, with costs to the appellant to abide the event.