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, P 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. (Story on Bills, sec. 201, &c. Howard v. Ives, 1 Hill, 263. Dunlap’s Paley on Agency, 91, note 274, 5. 2 Kent’s Com. 630. Montgomery County Bank v. Albany City Bank, 3 Seld. 459. Colvin v. Holbrook, 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.)
*631The bank was only liable to Boynton, its principal, and can in no sense be said to be the agent of, or liable to, Gates. Boynton was the owner of the note, and had left it with the bank for collection. And that institution would have been liable to him for any neglect or omission on its part, or for a refusal to pay over the money to him. All the authorities above cited show that the bank, in all such cases, is the agent of the owner of the note, and not of the maker, who is bound to make payment where, by the terms of the note, it is made payable. In some of the cases, the bank was held liable for losses sustained by the holder and owner of the note, by not properly charging an indorser. It was wrell said, on the argument, that “ if the bank, in such cases, could be said to be agent for the maker, it is agent for prior indorsers, whereas its neglect has discharged such indorsers and made itself liable ; that is, the neglect of a bank, as agent, has discharged its own principal.”
The justice, while he admits that if the evidence of Gates is the true statement of facts, the payment made to the bank operated instanter as a satisfaction of the note, and would have constituted a perfect bar to the action in favor of Boynton, against Gatos, yet contends that inasmuch as the bank denied the receipt of the money, it must be considered as the agent of both parties, and that having been intrusted with the money, by Gates, to pay the note, and not having done so, it is therefore liable to an action by him to recover it back. But, to come to a conclusion that the plaintiff is entitled to recover, he assumes, as he must, that Gates actually paid the note to the teller, and took it up. ' No matter whether that fact is denied or not. The justice has so found, and the county court declares that he has found correctly. Then all relation between the bank and Gates, if it ever existed, entirely ceased, and Gates became discharged from all liability on the note. His defense to the suit brought by Boynton, afterwards, against him, would have been perfect, if he had established the fact of payment, satisfactorily; and if he failed from want of proof, or by the error of the court, his remedy was not changed, so far as the bank was concerned, and it was no more liable than it was before that trial, The counsel *632for the plaintiff insists that the bank was at least as much the agent of Gates as of Boynton, and that the bank agreed with Gates to receive the money and pay it over to Boynton. The bank received the note, in their ordinary mode, as collecting agent for Boynton. When Gates paid it to the latter he was absolutely discharged from all liability. He took it up. It was in his possession, and was entirely canceled. If Boynton had prosecuted the bank, upon Gates’ evidence, uncontradicted and unexplained, he would most undoubtedly have been entitled to recover. The bank became the agent of the holder, by taking the note to collect. It was indorsed by Boynton, for the express purpose of authorizing it to receive payment. Payment was made by Gates to the bank, the agent of Boynton, according to the plaintiff’s theory, and the debt, as to him, became extim guished. There was nothing left for it, as agent of Gates, to do. It had applied the money in payment of the note, as it had authority to do, and all liability ceased, so far as he was concerned. This is the most favorable view that can be taken, in favor of the plaintiff. It may be observed that the indorsement in blank, by the payee, and the possession by the bank, gave to it the legal title to the note, The bank was the legal holder of the note, so far as the maker ivas concerned ; and unless it had been obtained by the latter by fraud, a payment to the bank as holder absolved the maker, The authorities already cited abum dantly establish this proposition. And see Chitty on Bills, 229, 230; 2 Kent’s Com. 89. Gates, then, when he paid the note, if he swears truly, paid it to the legal owner or holder, and from that moment it became fully canceled. But the first view taken is, in my judgment, the most satisfactory, and in accordance with the law and the facts,
This view, if correct, renders it unnecessary to consider the other points raised by the counsel for the defendant. Whether the action and judgment between Boynton and Gates, in Avhich the fact of payment of the note to the bank was directly in issue, was so far an adjudication between the same parties or their privies as to be a bar to this suit, or not, I am not to be understood as expressing any opinion. It may, however, *633be remarked, in passing, that the defense set up in that action was that the defendant (Gates) “ paid said note and protest at the bank, soon after the same was protested, to the agent of the plaintiff, and to the holder of the said note,” and that Seymour was sworn, and testified to such payment.
[Saratoga General Term, July 8, 1856.Whether that suit was a bar or not, the pleadings and evidence tended to show that the bank was never regarded as the agent of Gates, and that the payment claimed to have been made by Gatos, was a payment to the bank, either as owner, or holder, or agent of Boynton. But I do not dwell on this point. Neither must I be considered as passing an opinion upon the question whether the decision of the justice was supported by the evidence, or whether it is against the whole weight of evidence, or not. The evidence was certainly contradictory, and Gates, who was tbe only witness to prove payment of the note, stands contradicted by three witnesses, as to the most material facts. It is true he had the note in his possession after the alleged payment. But it is also true that the teller swears that he handed him the note, to look at and compare with another, at the same time that Gates swears he paid it, and that he (the teller) has never since seen it until produced by Gates. Mr. Thompson and Mr. Boynton both swear to a state of facts entirely inconsistent with the idea of- payment of the note. And it appears that the money, out of which Gates alleges he paid it, had been in his possession three or four weeks before it became due, and yet he suffered the note to go to protest, and paid the fees of protest, with the note, in two days thereafter. There are other inconsistencies which might be adverted to, but as I do not mean to express an opinion on this point, I forbear further comment.
The judgments of the county court and of the justice must be reversed, with costs.
C. L. Allen, Paige, James and Rosekrns, Justices.]