[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 532 The question turns upon the character of the transaction between Murray and the Troy bank, and although the appellant's case has been presented with more than usual ingenuity, we find no reason to doubt the correctness of the answer given to the question by the referee, and concurred in by the General Term, after an opinion by one of its learned judges (25 Hun, 101), which so fully reviews the evidence and the authorities, that we should be content with simply expressing our concurrence, if the case had not been sent here by that court as involving a question of law which ought to be reviewed.
The argument of the learned counsel for the appellant assumes and starts from the very point in dispute — it rests on the assertion that the Troy bank became the depositary merely of the check, on condition that in case of non-payment it should be returned to Murray and the credit canceled, or, as it is also put, became the holder of the check as the agent of Murray for collection for his account. These propositions differ in form only, and in either shape are at variance with the finding of the referee. The latter must prevail. It is not disputed that Murray held the check as owner — it was his property to do with as he pleased. He had held other checks. Some of these he placed in the Troy bank for collection; others he deposited and took credit therefor as cash upon his passbook. As to the first he could give and revoke his own directions as often as he chose, but as to the others when they were by his direction credited to him, the title passed to the bank, and they were not again subject to his control. This we understand to be the result of the general rule applicable to such transactions. (Scott v. Ocean Bank in cityof New York, 23 N.Y. 289; Story on Bailments, § 88; Keene v.Collier, 1 Metc. [Ky.] 415; *Page 535 Brahm v. Adkins, 77 Ill. 263; Chapman v. White, 6 N.Y. 412; Bank of the Republic v. Millard, 10 Wall. 152; In reFranklin Bank, 1 Paige, 254; Clark v. Merchants' Bank,2 N.Y. 380.)
The check in question was of the last class. It is true no express agreement was made transferring the check for so much money, but it was delivered to the bank and accepted by it, and the bank gave Murray credit for the amount, and he accepted it. That was enough. The property in the check passed from Murray and vested in the bank. He was entitled to draw the money so credited to him, for as to it the relation of debtor and creditor was formed, and the right of Murray to command payment at once was of the very nature and essence of the transaction. On the other hand, the bank, as owner of the check, could confer a perfect title upon its transferee, and, therefore, when by its directions the plaintiff received, and gave credit for it upon account, it became its owner and entitled to the money which it represented. The check, therefore, for every purpose material upon this inquiry, as between these parties was money. But even if the check had remained in the hands of the Troy bank, Murray could not have reclaimed it. If, as the appellant insists, the check had been deposited for a specific purpose — for collection, the property would have remained in the depositor, but there is no evidence upon which such fact could be established, nor is it consistent with the dealings between the parties, or with any of the admitted circumstances.
These show that it was the intention of both parties to make the transfer of the check absolute, and not merely to enable the bank to receive the money upon it, as Murray's agent. The appellant assumes the contrary; but the referee refused to find in accordance with the defendant's theory, and upon the evidence his refusal was well founded.
The cases cited by the appellant have been examined; most of them are considered in the opinion of the General Term, supra, and the others lend no support to his contention, except *Page 536 upon the theory, which we think untenable, that the check was deposited for a specific purpose, and not generally.
The appellant urges that the check was not delivered by Murray as the result of a negotiation or application for its discount or sale, or for a credit, and if we look for such negotiation in the words of the parties only, this must be conceded; but if we take the conduct of the parties during the transaction, it is otherwise. They adopted a mode of intercourse which fulfilled the function of spoken words, and brought about a result as intelligibly as words could have done. Suppose Murray, handing the check to the cashier, said, "buy this," or "give me the money on this," or "discount it for me," and the cashier taking the check, gave back at the same moment its amount, there would then have been the express agreement which the appellant thinks necessary, and no one would doubt that the title to the check and money changed from one to the other, that thereby Murray incurred a contingent liability to the bank as indorser of the check, and that he could again obtain it only by a new bargain. So if instead of giving the money the cashier had said "yes" to the application of Murray, and Murray had replied, "place it to my credit," or had himself taken the money and deposited it, the result would have been the same. What was actually done by the parties amounted to this. Murray noted the check and its amount, and also another check upon a deposit slip or memorandum in these words:
"Deposited in the Merchants and Mechanics' Bank by Ed. F. Murray, Troy, October 30, 1878.
Check ................................... $ 305 Check ................................... 9 ______ $ 314" ======
gave it with the checks to the cashier, and he entered the gross amount on the credit side in Murray's book as cash, and returned the book to him. He examined it at that time. The bank thereby charged itself with a debt absolutely due to *Page 537 Murray (Commercial Bk. of Albany v. Hughes, 17 Wend. 94), and he held the promise or obligation of the bank available to himself from that moment.
Another point is made by the learned counsel for the appellant. Upon cross-examination of one of the officers of the Troy bank, it appeared that on the 31st day of October, after examination of its affairs, by the bank superintendent, its business was suspended. The witness was then asked whether "before that examination it was known that a state of things existed that would justify an injunction — was it known in the bank that it was insolvent." Upon objection made, the appellant offered to show that it was known to the bank that it was insolvent, and that being rejected, an exception was taken. This is now relied upon. It should not prevail. There is no allegation in the answer that fraud was practiced by the bank upon Murray, or that in receiving the deposit and giving credit to him there was any intent to withhold the sum credited, or that it was done in contemplation of insolvency. Moreover it is plain that the bank continued, after the deposit, debtor to Murray by his own choice, and not by reason of its solicitation or act. He could have drawn the amount the moment credit was given, and, in not doing so, consulted his own pleasure or convenience. Whether such defense, therefore, would, under any circumstances, avail the defendant it is not necessary to inquire. No ground is assigned by the learned counsel upon which any other exception taken for the appellant can be supported, and we discover none.
The judgment should be affirmed.
All concur, except TRACY, J., absent.
Judgment affirmed. *Page 538