Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-08-15

Frizzell promised should he dome No
Oohus were delivered next morning, ac-
/, Sofuing 70 promise, and none were at the
l IaeSnanics BANK when the promise was
nxoe. but Ffizzell states, in his answer.
tnss on the day the bonds were needed
on some snort time before then. M.
Gieaves spoke to Wilson, President of
Mechanics Bank, for the bonds. Mr.
Wilson, who is in every way responsible
told GleaFes that he could get the bo,,,ls
or check for them. GIeayes. in oood
faith, believed the bonds were in the Rtnt
in Nashville, and gave the check, but newt
morning, finding that Wilson kent his
bonds in New York, at once determined
to put the matter beyond dispute, and
went to the Fourth National Bank, be.
cause of its superior credit, and made
arrangements to have this Bank accept a
check on New York, as it turned out no
bonds were in the city. This was done,
snd Fennebaker was notified of all the
facts, aud the whole matter having been
lett with him, he conferred with Mr..
Fogg, and said the thing was entirely
satisfactory; that the check was marked
good By the cashier OF the Bank, aud was
as good as it could be, and that the whole
thing was done 10 good faith The check
was marked good, or accepted, to be paid
in thirty days The bonds were. pending
the argument, brought into Court, and
are now in the hands of the Master.
Now is this sufficient compliance
with the terms of sale2
A check is an order for the payment IF
money. Brown vs.. Lark, 4 Yer. 2lO.
And is always presumed to be drawn
against funds. 2 Parsons on Bills and
Notes, SO.
Inen Inc instrument given by Gleaves
was not check, but an order for bonds.
No authority to the cashier TO make
such an acceptance has been shown.
And as to the authority of teller or
cas- her of bank to certify in that way,
1t cannot be derived from his general
power or duty, or from the nature of his
office. But it is certain that bank NAV
by vote confer this power upon an of.
ticer. 2 Parsons on Notes and Bills, IS
Murray va Eagle Bank, He, SOC.
And in case it was held that usage on
the part of the cashier to certify check, ;
however clear or proved, would be bad |
usage and not bind the bank. 2 Parsons
on Bills and Notes, 76.
If cash were agreed upon at the lime
of sale, and in its stead a check or bill
ID given, it ia then only taken for the
convenience of the debtor, aud if it be
not productive, there Is no payment of
the debt. Parsons on Bills and Notes,
I57.
Where the inference that q note or bill
received is taken as payment, it would |
seem from some cases that this evidence |
must be very strong, because it receives
no help from presumption. Parsons
on Bills and Notes, 1874.
Now if Pennebsker and Mr.. Fogg were |
willing to accept the check as a payment, |
there is no evidence that the other Com |
missioners were, and its acceptance would |
not be payment.
do not think that the facts show that |
GleaVes and Frizzel intended to commit !
fraud on the Commissioners. But |
then, their statements misled the Com !
missioners- If party innocently mis-. |
represents material fact by mistake, |
upon which another party is induced to |
act, it is as conclusive ground of relief in /
equity as a willful and false asser- |
ton, for in either case it operates as |
q surprise and imposition on the other |
party. In such case the party must be |
held to his misrepresentation. Phillips |
& Jordon vs.. H0llister, 2 C0ldgell, 266. |
1t is said, however, that even if |
FTizzell did mislead the commissioners,
that Wright d Co, are in no condition
to complain. 1t is true that frsud must
ha -
and Kentucky Railroad Company, 2 Head,
%.
Being contestants for the rights to pur- |
chase, could they rot rely upon anything |
to show that Frzzeli's purchase was net |
good, without deciding this, and be it as |
1t may the commissioners complain,
and ask for withdrawal or modification
of the report, and show that the terms of |
sale have not been complied with.
1t is true the State is bound by the acts |
of its agents as a natural person would I
be- jefferson Turnpike Company VS.. /
State, Hump. sos.
But if person acting in d filuciary
capacity exceeds his power, however H.
nocentIy, the contract made 10 such ex-
cess is void. Bret VS. Rogers, Paige,
4ctg OOC Vs. OA0NCSt lACd-1 -0Jr ol(lI
on Agency, secs. 165 6.
The law under which the sale was
msde required the purchaser at the time
of the sale, to deliver at least one fourth
of the amount agreed to be paid, of the
legal bonds OF the State to the Governor.
To deliver the bonds then, at the time Of
the sale, was one of the conditions of the
sale, and the delivery must take place at
the sale, and condition that must be
performed before party could claim to
be purchaser.
Conditions precedent must be strictly
performed. Oakley VS.. Morton, 1 New
York, 30.
The bringing of the bonds into court,
and rendering them, viii not cure the
failure to comply with the law and terms
of sale. Frizzell has acquired no
rights as a purchaser, and the Master will
deliver the bonds brought into court by
FriZzsll to him on his demand.
Exception first of exceptions of July
10, and first and second of July 81,
will be sustained; the other exceptions
are overruled. The report Of the Com
missioners will be set aside. And d de-
cree rendered in accordance with the
opinion. ADRIAN L DKMos5,
Aug. 9, 1871. Special Chancellor.
Since delivering the opinion above, my
attention has been called by the counsel
for Wright & Co. to the general decree,
in Minute Book T, page 500. This de-
cree was not read in evidence or alluded |
to during the trial of the matter about
which the opinion is given. Bat before
allowing q decrea to be entered, | have
examined it (the general decree,
and am of the opinion that the
opinion does not interfere with it, or
undertakes to settle any matter there
settled, and therefore adhere to the
original opinion. ABRAN L. DEMoss,