Summary
In Coleman v. First National Bank of Elmira (53 N.Y. 388) Judge ANDREWS said: "But one who deals with an agent is not concluded from resorting to the principal unless it distinctly appears that with full knowledge of all the facts he elected to take the sole responsibility of the agent and that he designed to abandon any claim against the principal.
Summary of this case from Sweeney v. Douglas Copper Co.Opinion
Argued June 10, 1873
Decided September 23, 1873
Murdoch Stephens for the appellant.
Smith Hill for the respondent.
The certificate given to the plaintiff at the time of the deposit is not signed by Van Campen in his official character, but is in form an acknowledgment that the plaintiff had deposited with him the money claimed in this action, coupled with his personal undertaking to repay the amount deposited with interest according to the terms of the certificate. The bank is not named in it, nor is there anything on its face which indicates that the money had been deposited with the bank, or that it had assumed any obligation in respect thereto. The learned judge at the trial submitted to the jury the question whether in fact the transaction between the plaintiff and the teller of the bank was a deposit of the money with the bank or with Van Campen, and the jury by their verdict have found that the deposit was made with the defendant. The evidence supports this conclusion. The money was paid by the plaintiff over the counter of the bank to an officer in charge of its business, who was informed when he received it that the plaintiff wished to leave it with the bank. The name of Van Campen was not mentioned, and the plaintiff did not know and had never seen him. The receipt of money on deposit was a part of the ordinary business of the defendant. The money was paid to and received by the teller of the bank, and up to the point when the certificate was given, the dealing, as shown by the acts of the parties, was between the plaintiff and the bank, and not between the plaintiff and Van Campen. Leaving out of view the certificate, the liability of the defendant is clear. The bank received the money of the plaintiff as a deposit, and thereupon it became bound upon an implied contract to repay it upon demand.
It is insisted, however, that the certificate issued to the plaintiff at the time of the deposit conclusively establishes that the transaction was with Van Campen and upon his sole credit. The certificate is said to be a written contract, by which alone the right of the plaintiff is to be determined, and that parol proof that the deposit was made with the bank or tending to establish a liability of the bank was inadmissible, as in violation of the rule that parol evidence cannot be given to contradict a written instrument. The rule that when parties have reduced a contract between them to writing, the writing alone, in the absence of fraud or mistake, is to be referred to, to define their respective rights and liabilities, and that all preliminary negotiations are to be deemed merged in, and if inconsistent therewith superseded, by the written contract, is supported as well by considerations of policy as by judicial decision. But assuming that the certificate signed by Van Campen when accepted by the plaintiff became a written contract between them, parol evidence that the bank received the money as a deposit did not contradict any written agreement between the bank and the plaintiff, for they had made none. The real issue on the trial was whether the bank or Van Campen was the depositary. Unexplained, the fact that the plaintiff accepted the certificate of Van Campen was strong if not conclusive evidence that the bank was not a party to the transaction; but it was evidence only, and was subject to explanation by parol proof, without violating the rule referred to. In Barry v. Ransom ( 12 N.Y., 464), DENIO, J., in speaking of the rule, says: "It is a valuable principle, which we would be unwilling to draw in question, but we think it is limited to the stipulations between the parties actually contracting with each other by the written instrument." The rule does not preclude a party who has entered into a written contract with an agent from maintaining an action against the principal, upon parol proof that the contract was made in fact for the principal, where the agency was not disclosed by the contract, and was not known to the plaintiff when it was made, or where there was no intention to rely upon the credit of the agent to the exclusion of the principal. Such proof does not contradict the written contract. It superadds a liability against the principal to that existing against the agent. That parol evidence may be introduced in such a case to charge the principal, while it would be inadmissible to discharge the agent, is well settled by authority. ( Ford v. Williams, 21 How. [U.S.], 207; Higgins v. Senior, 8 M. W., 834; PARKER, J., Short v. Spoakman, 2 B. Ad., 962; Taintor v. Prendergast, 3 Hill, 72; Gates v. Brower, 9 N.Y., 205.)
The jury having found that the money was in fact deposited with the bank, the case then in one aspect is that of a depositor taking the personal certificate and obligation of a person who was at the time the chief financial officer and agent of the bank for its repayment. If he did this under circumstances indicating an intention to give the sole credit to Van Campen, knowing as he did that the bank was the real principal, then his election would bind him, and he could not subsequently resort to the bank on the insolvency of the agent. ( Patterson v. Gandasequi, 15 East, 62; Addison v. Gandassequi, 4 Taunt., 573.) But one who deals with an agent is not concluded from resorting to the principal unless it distinctly appears that, with full knowledge of all the facts, he elected to take the sole responsibility of the agent, and that he designed to abandon any claim against the principal. ( Thompson v. Davenport, 9 B. C., 78.) In this case, upon the facts found by the jury, no such intention can be inferred. If the plaintiff had examined the certificate, he would have been apprised of the fact that it purported to be the individual obligation of Van Campen. But he did not do so. He had a right to suppose that it was the proper acknowledgement of the bank with which the money was deposited. The doctrine of constructive notice, from the possession of the certificate, would be misapplied if, in this case, it should be held to exempt the bank from liability.
These views dispose of the case, and render it unnecessary to consider whether the certificate issued to the plaintiff may not be treated as the obligation of the bank, and whether the bank is not precluded as against the plaintiff from denying it.
The other exceptions in the case are immaterial in view of the disposition made of the principal question.
The judgment should be affirmed, with costs
All concur.
Judgment affirmed.