I am unable to concur with the majority of the court in the result or reasons given for it.
The check drawn by Mrs. Melson on the defendant was indorsed in blank by Cameron, the payee, and left with the Harrisons, the Indianapolis bankers, for collection. They indorsed it to the plaintiff's cashier for collection, and sent the check to the plaintiff, their correspondent in the city of New York, and the latter in like manner indorsed it to the cashier of the defendant, and sent the check to him with directions to remit to the plaintiff its proceeds in New York city funds. This was received by the defendant on July eighteenth, and on the same day it drew its draft on the First National Bank of New York for the amount, less exchange, and mailed it to the plaintiff. The Harrisons failed and suspended payment on July seventeenth, and immediately after hearing of such failure, and on July nineteenth, Cameron requested the defendant not to pay it, and afterward, before the defendant's draft was presented, requested the defendant to stop its payment, and thereupon, on the last named day, the defendant notified the bank on which its draft was drawn not to pay the draft, and asked the plaintiff to hold it. It was, however, afterward presented to the drawee, and payment being refused, the draft was protested for non-payment. This action was brought on that draft, and the question is whether the facts so stated constitute a defense. They clearly would not if the plaintiff had taken the apparent and actual title to the check and become a holder of it in good faith for value, because the indorsement in blank by the payee apparently operated as a transfer of the check to the Harrisons. But the plaintiff parted with nothing on the faith of the check. While the letter in which it was received by the plaintiff, stated that it was inclosed for credit, the indorsement made upon the check by the Harrisons was restrictive and purported that it was sent to the plaintiff for collection. And it appears that this portion of the letter preceded the statement of the remittance and was printed and was the ordinary form of the letters of the Harrisons in which all their transmissions of paper to the plaintiff were made. That *Page 450 fact may, in view of the manner that the indorsement was made, deny to that formal portion of the letter the significance which it might otherwise have had. But it has no essential importance upon the question here, inasmuch as the plaintiff advanced nothing upon the check. The plaintiff had for many years had an account current with the Harrisons arising from remittances of paper from each to the other for collection and credit of the proceeds, and the latter from time to time drew drafts upon the former. When the check was received by the plaintiff, the amount of it was credited to the Harrisons in such account, and, after the protest of the draft, was charged back to them in accordance with the course of dealing, as understood between those parties, that if paper received and credited was not paid it should be placed to the debit of the party sending it.
The check having been placed in Harrisons' hands for collection, the plaintiff, by crediting them with it in general account, acquired no title to it as against Cameron, the payee. His was the right to reclaim the check, or to obtain its proceeds if paid, or to stop its payment by the defendant to any party other than a holder in good faith for value, which position the plaintiff did not have. (Dickerson v. Wason, 47 N.Y. 439;Warner v. Lee, 6 id. 144; Commercial Bank v. Marine Bank, 1 Abb. Ct. App. Dec. 405; Farmers' M.N. Bank v. King, 57 Penn. St. 202.) The question now arises whether the situation in which the defendant was placed or its relation assumed to the plaintiff, was such as to deny to it the right to make the defense which it sought to make in this action. Treating the defendant as a mere volunteer in the denial of its liability upon the draft, it clearly could not defeat a recovery. It could not in such case question the title of the plaintiff. That was the principle of the case of City Bank of New Haven v. Perkins (29 N.Y. 554); McKay v. Draper (27 id. 256); Aubrey v.Fiske (36 id. 47); Hays v. Hathorn (74 id. 486), cited by the defendant's counsel, and the same may be said of the other cases cited by him on the question of the right of the defendant to defend the action. The disability *Page 451 may arise out of the relation which one party assumes to another, whom he represents, and between whom in some sense that of principal and agent exists, and the latter may not be liable to third persons, but to his principal only, while the relation exists; nor can the party who undertakes to perform a duty assumed to another, when called upon for performance set up by way of relief from liability to do so, the right in a third party with whom he is not connected and with whom he has personally no concern upon the subject (Montgomery Co. Bank v. Albany CityBank, 7 N.Y. 459); but that is not this case. The payee of the check never parted with the title to it. The Harrisons were employed by him to collect it, and the plaintiff was employed by them to aid in the accomplishment of the purpose for which it was left with them by the payee. The latter had a right to step in and intercept the check in the hands of any party other than a holder in good faith for value and reclaim it as his property, and in like manner to interrupt the transmission of the proceeds of it to the Harrisons and recover them. This right of the owner is within the doctrine of the Commercial Bank and Dickerson cases before cited. And the cause for its attempted exercise was the insolvency of the Harrisons. The check had then been charged by the defendant to the drawer, and the draft as directed by the plaintiff had been mailed to it by the defendant. The latter had discharged its duty to both the drawer and the plaintiff, and nothing remained for it to do toward the accomplishment of the purpose for which the check was drawn and transmitted through the plaintiff to the defendant. The fund was represented by the draft, which the defendant had mailed to the plaintiff. The draft was the means by which the proceeds of the check were sent on their way to the destination contemplated when the check was left with the Indianapolis bankers, and they belonged to Cameron, its payee. He as such owner having the right to step in and control their destination and thus countermand the authority which he had given to the Harrisons to receive the proceeds of the check, with that view requested the defendant to act for him and stay the funds from the *Page 452 hands of the plaintiff by stopping the payment of the draft so forwarded to it. This was done, and in doing so the defendant represented him. The facts justifying his right to do so supported the action of the defendant, and afforded to it a defense in the plaintiff's action upon the draft, unless the defendant by its relation to the plaintiff was disabled from acting upon the request and direction of the owner of the fund. The situation presented by the facts, was, that the Harrisons were the agents of the payee of the check and the plaintiff was their agent to aid in its collection, and by the latter the defendant was called upon for its payment. The direction of Cameron to stop the payment to the plaintiff, operated as a revocation of the agency he had set in motion and to stay, at the then stage of their progress, the means which had been adopted for its execution. It was unimportant for that purpose and such effect that the defendant had issued and forwarded its draft. The direction which he had the right to give and the defendant, in view of the facts, had the right to observe, was that the latter should not pay his money to the plaintiff, who as against Cameron and his direction had no right to it. And thus was afforded to the defendant a defense founded upon the right of Cameron and his authority or requirement. The question would have been no different if the defendant's messenger had been on his way with the funds to the plaintiff, and his mission had been countermanded before handing over the money to the latter. The draft sent was a mere transmission in that form of the apparent liability of the defendant to pay, upon which the plaintiff probably may have realized but for the interruption caused by the direction given to the drawee of the draft not to pay it. It follows that the defendant was justified in asserting that the plaintiff had no right to the fund represented by the draft, as effectually as Cameron could have done if he had been interpleaded as a party defendant. (Comstock v. Hoag, 5 Wend. 600; Herrick v. Carman, 10 Johns. 224; Barker v.Prentiss, 6 Mass. 430.) And in view of the facts found by the trial court, and as before stated, it is unnecessary to further consider the state of account *Page 453 between the plaintiff and the Harrisons, as it is quite unimportant on which side of it the balance was, since the credit of the check to the latter was on general account, and no advance was made to them on account of the check. (McBride v. Farmers'Bank, 26 N.Y. 450; Lindauer v. Fourth Nat. Bank, 55 Barb. 75; Dod v. Fourth Nat. Bank, 59 id. 265.) In MontgomeryCounty Bank v. Albany City Bank, the question was as to whom the correspondent of another, who had received commercial paper for collection and sent it to him for a like purpose, was liable for failure or neglect to perform the duty assumed to charge the indorsers. It involved no consideration having relation to the fund when collected, and is not in conflict with the later cases to the effect that the beneficial owner of the proceeds of the paper when collected may effectually assert his right to the fund as against any party receiving it in the execution of the agency. It is said in the prevailing opinion in the present case, that if the check had been dishonored the Corn Exchange Bank could have maintained an action upon it. Assuming that, if not interrupted by the payee, it may have been so, it is wholly without importance upon any question in this case. But against whom could this action be supported? Certainly not against the defendant without its acceptance of the check. (Attorney-General v.Continental L. Ins. Co., 71 N.Y. 325.) Nor against Cameron, the payee and indorser, because he was the beneficial owner of it. Nor against Harrisons, the plaintiff's principal. And a further reason why plaintiff could have maintained no action in its own name upon the check is that it took no apparent title. The purpose of the indorsement by the Harrisons, as expressed in it, was that it was made to the plaintiff for collection of the check. This restriction denied to the plaintiff the apparent title, and it had none in fact, to support any action in its name upon the check. (Daniels on Neg. Inst., §§ 698, 699; White v.Nat. Bank, 102 U.S. 658; Sigourney v. Lloyd, 8 Barn. C. 622; Hook v. Pratt, 78 N.Y. 371.) The purpose of the suggestion that the defendant charged the plaintiff $1.84 for the draft is not apparent. *Page 454 If, however, it was made to show a consideration between the parties for the draft issued by the defendant, it may be added that this amount retained by the defendant was taken from the proceeds of the check for exchange, which was legitimately within the expense of collection of the check in the usual course for that purpose, and the amount of the draft was so much less than that of the check. It seems to be without significance for any purpose in this action.
I think the judgment should be affirmed.
All concur with FOLLETT, Ch. J., except BRADLEY and BROWN, JJ., dissenting, and HAIGHT, J., not sitting.
Judgment reversed.