The opinion of the Court was by
Weston C. J.The draft in controversy was remitted by the defendant to the plaintiff, with a request, that when paid, it should be passed to his credit, he being indebted to the plaintiff. This imposed upon the latter reasonable fidelity, in discharge of his trust. He was liable to no other risk or haz*168ard, in relation to the business. He put it in train for collection, by causing it to be discounted at the Union Bank, at Boston. This did not increase the hazard to the defendant, or to the parties to the draft. It enlisted the vigilance of the bank 'in the collection, they having great facilities, through their officers, and by their extensive correspondence. The defendant, when advised of what was done, made no objection; but in his letter of March 18, 1837, acknowledging the receipt of the notices, requested that the draft might be returned to him, that he might call on the indorser. If he had disapproved of the plaintiff’s course, or claimed to hold him responsible for the draft, or any part of the damages or expense, he was required, upon the principles of fair dealing between merchants, so to have apprized hirm
The fact, that the plaintiff credited the defendant with the avails, before the draft had been honored, ought not to conclude him, .unless chargeable with negligence, or a want of fidelity. And this is not imputable to-him, from any evidence presented in the case. The banks and the notary were the usual and approved agents, proper to be employed in the discharge of the duty confided to him. Failing to realize the expectations of the defendant, he advises him of the result and forwards to him notices for the indorser and drawer, which were received and transmitted. It thereupon became the business of the defendant to resort to the parties for payment. Isaac Hobbs, the deponent, remitted a new draft to the plaintiff, which, he was to retain or not, at his election; and of this the defendant approved.. The plaintiff promptly returned the new draft. Having done his duty, and fully advised the defendant, if Neal D. Shaw, the indorser, was ready and willing to pay the amount of the draft, without the damages, it was for the defendant to decide, whether that proposition would be acceptable. We are not aware, that the plaintiff was bound to adjust the matter upon those terms.
Upon the whole, if any loss has been sustained, it does not appear to us, that it should fall upon the plaintiff. He was acting for the defendant, and faithfully discharged his duty. *169The defendant, as is fairly to be implied from his correspondence, was satisfied with what he had done. The plaintiff is justly entitled then to charge back the amount of the draft, and to add thereto the damages and expenses, by him actually paid ; and judgment is to be made up accordingly.