President of Greenfield Bank v. Crafts

Bigelow, C. J.

Several of the rulings at the trial of this case seem to us to have been erroneous.

1. We are unable to perceive how the testimony of Packard, cashier of the Franklin County Bank, concerning drafts other than the one falling due January 12th 1858, could have been competent to affect the defendant. There was no proof which tended to bring home knowledge of the existence of these drafts to him. The fact that they were indorsed in his name, and in the same handwriting with those declared on, had no tendency to show that he had authorized bis son to place his signature on the note and drafts which are the subject of this suit. An authority could be implied only from a course of dealing which was known to the defendant, or from a knowledge of and acquiescence in the use of his name by his son in the manner in which it had been placed on the negotiable paper held by the plaintiffs. As there was no evidence to show that the defendant had any notice of the twenty or thirty drafts which were discounted by the Franklin County Bank after January 1858, all proof concerning them was irrelevant, and had a tendency to mislead the jury. It was, in effect, an attempt to charge the defendant on drafts which he alleged to have been forged, by proof that a large number of other similar drafts had been in circulation, of the existence of which it was not shown he had any knowledge. In other words, the evidence tended to render the defendant liable on one class of forged paper, by the mere proof that other similar paper had been in existence. This was clearly erroneous.

2. The court also erred in instructing the jury that it was the duty of the defendant, on receiving notices of the protests of the note and drafts declared on, to express dissatisfaction with the use which had been made of his name, or to repudiate the genuineness of the indorsements on the paper held by the plaintiffs. This was a misdirection as to the legal duty of the defendant. It led the jury to believe that the defendant was to be held liable in this action by a mere omission to disclaim in express terms to the plaintiffs, after receiving notice of the existence of the note and drafts from the notary, the genuineness of the indorsements or the authority of his son to place his name as an indorser thereon. No such duty was imposed on him by law. A protest of a note or draft is made for the purpose of fixing the liability of the indorser or drawer by a seasonable notice that due demand has been made upon the promisor or acceptor. Notice of a protest requires no answer and calls for no action on the part of the person to whom it is addressed. He has a right to remain silent, and to stand on hi * legal rights as to his liability as a party to the note or draft t - which it relates. No duty to disclaim or repudiate the paper i thereby imposed on him, and no absolute inference as to his lia bility thereon is to be drawn from a mere omission to disown 01 disavow the contract on which he is sought to be charged. We do not mean to say that evidence of the neglect or omission of the defendant to say or do anything concerning the paper bearing his name which was held by the plaintiff, and of which he had notice from the notary, was inadmissible. On the contrary, it was admissible as leading to an inference that he did not act as men ordinarily would under like circumstances. If the jury were of opinion that a man receiving direct notice that he was to be held liable on negotiable paper to which his signature was affixed neither by himself or by his authority, would without delay disclaim and repudiate it, then they were at liberty to infer that the conduct of the defendant showed that he either wrote or authorized the signatures. But he was not bound as a matter of duty to make such disclaimer or repudiation, or else be held liable on the drafts; and this was the error in the instructions. The court told the jury that it was the legal duty of the defendant to disclaim and repudiate the note and drafts, instead of directing them that his silence and omission to declare the indorsements to be forgeries were to be taken into consideration as a circumstance tending to show that the signatures were put on the paper by the defendant, or by his authority.

3. There was another error in the instructions in relation to the draft which was not due at the time of the interview between the plaintiffs’' cashier and the defendant. There is no evidence to show that the defendant knew of the existence of any draft in the hands of the plaintiffs which had not then matured. The conversation related solely to those which had fallen due previously to the interview. In this state of the proof, it is clear that there was nothing on which to base an inference that the draft which was not due at the time of the interview was ratified or adopted by the defendant. He could not authorize or sanction an act of which he had no knowledge. Ratification or adoption necessarily implies that the principal had some notice of the transaction of his agent to which he intended to give his assent. The court omitted to call the attention of the jury to the proper application of the evidence to the different drafts declared on, as tending to charge the defendant on the ground that he had originally authorized the indorsements or subsequently sanctioned them. Upon that which fell due subsequent to the interview with the cashier on the seventeenth of December, he was liable only on the ground that he had given to his son a previous authority to place his name on the drafts.

Upon these grounds we are of opinion that the verdict rendered for the plaintiffs cannot be supported. If the plaintiffs, upon another trial, are able to obtain a verdict on evidence which is competent, and under instructions to which no valid exception can be taken, it will be proper to consider and determine the other questions which were discussed in the argument.

Exceptions sustained.