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J. A. Ansley & Co. vs. Anderson, Adair & Co.

have done, deposited it in the Manufacturers' and Mechanics' Bank of Columbus, which failed some two months thereafter without paying said deposit. In that case, the Court held that: "If a Sheriff collect money, and of his own accord deposits the money in a bank which fails, he is liable to respond to the plaintiff." It is a sufficient reply, that in the case at bar there is no question arising out of the failure of the depositary. The proceeds of the sale of the sugars are, and all the time have been, subject to the order of the plaintiffs.

On the second argument of the case, at the December Term, Judge Stephens relied very confidently upon the case of the Fulton Bank of New York vs. The Marine Bank of Chicago, reported in 2 Wallace S. C. R. I have not the book before me, but think I recollect the principal facts of the case and the point decided. Early in 1862, the bank notes circulating in Chicago were some five or six cents below par, and the Marine Bank issued a notice to its customers, that it could not make collections and remittances as theretofore, unless the customers would receive the depreciated Illinois currency. Subsequent to this notice, the Fulton Bank sent to the Marine Bank, for collection, notes amounting to upwards of $3,000. In May, 1862, the notes were paid in Illinois currency, then at a discount of ten per cent. No notice was given of the collections. In answer to a letter of inquiry from the Fulton Bank as to how its account stood, the Marine Bank answered there was due the amount of the collections. By the end of the year, Illinois currency was worth only fifty cents on the dollar. The Fulton Bank then demanded payment of its claim, and the Marine Bank proposed to pay in the depreciated currency-currency which had depreciated forty per cent. from the time of its reception, until the proposed payment-the tender of payment. It appeared that the currency collected by the Marine Bank was credited on the books to the Fulton Bank, and went into the funds of the Bauk, and was used in its daily business the same as any other currency on hand. No tender was ever made of the currency received, to the Fulton Bank,

J. A. Ansley & Co. vs. Anderson, Adair & Co.

until the settlement was demanded at the end of the year. Under this state of affairs, the Court held that the Marine Bank, having in May received the currency, and used it as it did its other funds; credited the Fulton Bank with the amount on its books, and never having tendered the currency until it had depreciated from ten to fifty per cent.; that the Marine Bank thereby made itself the debtor of the Fulton Bank, and liable to pay the value of the Illinois currency at the time of its reception. This is a very different case from the one at bar. Suppose that, instead of keeping and using money as it did the other funds of the Bank, the Marine Bank had immediately notified the Fulton Bank of the collection, and tendered in payment the currency received, and the Fulton Bank had refused to receive it, although it had authorized the reception of the currency in payment of the claims; suppose that the Marine Bank had then deposited the amount in some other safe bank, and notified the Fulton Bank that the money was so deposited, and was subject to its order at any time; and after this the Fulton Bank, all the time refusing to receive the currency, had sued the Marine Bank for the value of that identical currency which had been tendered and refused, and which was ever subject to its order. Suppose all these facts to have appeared, is there anything in the case which would raise a presumption that the Court would have held the Marine Bank liable? I think not. And yet, to make this case analagous to the one at bar, all these supposed facts would have to appear. I admit, that some of the language used by that Court in delivering the opinion, would seem to be in favor of the position assumed by counsel for the plaintiffs, yet the language of the Court must be considered in relation to the facts of the case, and thus show a case altogether different from the one at bar.

The question here is who shall suffer the depreciation of these notes, which belonged to plaintiffs-were tendered to them at the proper time, and refused. This is not the ordinary case of a debtor, making a tender of money to his

J. A. Ansley & Co. vs. Anderson, Adair & Co.

creditor; but that of a factor, with effects in his hands belonging to his principal. Of course, if a debtor make a tender of money to his creditor, which is refused, the effect is to protect the debtor from interest and costs; the debt remains still due, and the debtor must keep in readiness to pay whenever the creditor will receive. But a factor is not an insurer; he is bound to exercise reasonable care, skill and diligence in taking care of the effects of his principal, and when he does this he is not liable. Did defendants exercise such care in this case? "The amount" was deposited in a solvent bank, "subject to the order of the plaintiffs, at any time," and when sued, defendants brought the money into Court. The defendants, all the while, were trying to pay the Confederate notes, and the plaintiffs as earnestly trying to get something else, until the notes became utterly worthless. In March, when the notes were tendered and refused, the plaintiffs were "claiming the sugars instead ;" and to the October Term of the Court thereafter, they sued defendants, not to recover the Confederate notes, or their value, but to recover damages for the wrongful conversion of the sugars. On the final trial, however, in April, 1866, when they find that they must fail in their action of Trover, the plaintiffs ratify the sale, and ask that defendants pay the value of the Confederate notes at the date of the tender. They admit, that the notes were tendered at the proper time, and the proper amount, which amount was subject to their order at any time; but inasmuch as the deposit was in the defendants' name, they must now pay what was the value of the notes at the time. The money was in bank, subject to the order of the plaintiffs, and "the presumption is that a check would have been paid if diligently presented." Per Kent. J.-Cruger vs. Armstrong, 3 J. C. 9. Marzetti vs. Williams, 1 B. & Ad. 415 (20 E. C. L. R. 541.) If the money which has been tendered becomes, after a refusal to accept thereof, current at a less value than it was current when the tender was made, the party who refused to accept the money must bear the loss. 9 Bac. Abr. 317; Bouv. Ed.

J. A. Ansley & Co. vs. Anderson, Adair & Co.

This loss was not occasioned by any negligence of the defendants, or of the depository, but from an inherent defect of the property itself. In effect, plaintiffs neglected their property until it died of disease, the seeds of which were in it at the time it was received by defendants. For such a loss plaintiffs ask defendants to account. This is the whole. ease, and we think defendants ought not to be made to account. The Court below held defendants to be liable, and in so holding Judge Lumpkin and I think he erred. Judgment reversed.

HARRIS, J., Dissenting.

My convictions of the law of this case, under the agreed statement of facts, are so fixed from a very careful consideration of them-that I cannot by any process of reasoning, bring my mind to assent to the judgment rendered by the majority of this Court.

I exclude as wholly immaterial to a proper decision, all the facts as to the mistake about the sugars--which party was most in fault-as also the form of action brought. I admit broadly that Anderson, Adair & Co., were blameable in not receiving the Confederate notes for which the sugars were sold by Ansley & Co., when first tendered in Court. They were in truth and right at that time the property of Anderson, Adair & Co. Anderson, Adair & Co. had then no claim in law or equity whatever for the sugars sold by Ansley & Co., but only to the Confederate notes paid for them by the purchaser. I apprehend that no lawyer will dispute the proposition that, after making the tender, Ansley & Co. could, by bill in Equity, have compelled Anderson, Adair & Co. to have received said notes in payment, and to have granted to them a full acquittance from all liability for the sugars. But no step of this kind was taken for their protection. Ansley & Co., had they sealed up in a package the Confederate notes tendered by them, and deposited t

J. A. Ansley & Co. vs. Anderson, Adair & Co.

package in some safe and usual monied depository, subject to the order of Anderson, Adair & Co., and promptly notified them of such special deposit-might also in this mode have exonerated themselves from all liability which might subsequently arise from the depreciation or destruction of said notes. Neither the one course or the other indicated, was resorted to by Ansley & Co.

So far from taking any step whatever, indicative of their considering and treating the Confederate notes as the sole property of Anderson, Adair & Co., they withdrew, immediately after the tender, the notes from Court, and deposited them as money in Bank to their own credit, and mixed them with their own monies in said institution, and continued to use them by checking on their general deposit account for two years as their own property.

I think that these notes were undeniably the property of Anderson, Adair & Co. The tender admits the fact. The mixing of these notes with their own monies by a general deposit to their own credit, and the use of them by checking on that general deposit was an actual conversion.

The simple question upon this state of facts, and the only legitimate one in the case is, whether Ansley & Co., did not make themselves responsible by these acts to Anderson, Adair & Co., for the value which these Confederate notes had at the time of their conversion? There is no question in the record as to what care Ansley & Co., were bound to use in reference to the notes tendered-but simply could they use them, could they appropriate them to their own business transactions-could they convert them to their own use without making themselves responsible for their value at the time of the conversion?

One of the distinguished counsel of the defendants in error asked "after the tender and refusal to accept, did the Confederate notes become a waif, which might be taken possession of by any comer or goer, and appropriated to his own purposes without responsibility to the owner? Did they become lawful objects of general plunder? Or did they still

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