Holway v. Fuller

Ames, J.

Upon the facts stated in this bill of exceptions, it appears to us that the plaintiff had a case upon which he was entitled to go to the jury. The bill of exceptions imports that he presented the fraudulent certificate as security for a loan to his client Warren, in the regular course of his business as a broker, and that in so doing he acted in entire good faith and with no knowledge or suspicion that the certificate had been fraudulently altered. If so, we see no illegality or unfairness, either in his refusal to go on with the matter of procuring the loan, or in his consenting, after being informed of the true character of the certificate, to join in the detection of the offender, and in the attempt to bring her to justice. Certainly his duty to his client did not require him to connive at such a fraud, or to aid in its concealment or impunity.

As the plaintiff presents his case, all that afterwards passed between him and his client Warren was in pursuance of an arrangement suggested and urged by the' defendant, in accordance with the defendant’s instructions, and upon the defendant’s ex-, press promise to hold the plaintiff harmless against all damage and liability that might accrue from his making and delivering his draft to Warren. The plaintiff’s claim is, that, not having succeeded in prevailing upon Warren to go to the defendant’s office, where it was arranged that she should be arrested, he, in pursuance of the arrangement with the defendant, took Warren’s note for the amount of the proposed loan, and the certificate of the sixty shares, and gave her a draft on the defendant for the same amount,, less the brokerage, the design being that Warren, on presenting the draft, should be at once arrested. Instead, however, of presenting the draft in person, Warren transferred it to another party, by whom it was forwarded in due course to a bank in Boston for collection. On its presentation to the defendant for payment, it was dishonored and protested. The holder thereupon, having given due notice to the plaintiff, brought a suit against him, and he, as he contends, has been compelled to pay the entire amount, with interest and costs.

In considering the effect of the plaintiff’s exceptions in the present position of the case, it must be assumed that he is able to prove the case which he stated, and which he offered to prove. In ruling that there was no evidence on which he could recover, and directing a verdict against him, the court must be understood as taking the ground that, on the assumption that his story is true throughout, he,-as matter of law, is not entitled to recover.

It appears to us, however, to be entirely a question as to his good faith, and as such is a question peculiarly within the province of the jury. If there was such a contract of indemnity by the defendant, if the draft was given to Warren in the manner and under the circumstances alleged by the plaintiff, if there was no collusion between him and the party holding the draft, and if he gave his note for the amount of the judgment in good faith and in consideration of the release of the judgment and satisfaction of the execution, it is difficult to see why he is not entitled to prevail in this suit. Day v. Stickney, 14 Allen, 255. Washburn v. Pond, 2 Allen, 474. But this is wholly a question of fact, and not of law. It should have been passed upon by the jury, under proper instructions, and not by the court.

Exceptions sustained.