New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-04-20

otherwise, Dat that they were still the
owners of 1t when, on or about the
fifth day of April. A. ID. 1872, the defend
ant paid said draft or Till of exchange, to
one L. K. Hesser who was in no manner
authorized either to indorse the same for
them, or to receive payment, but who did
lndorse II. and receive payment, without
their knowledge or consent. That they
were never informed of the Endorsement,
nor of the payment. until atterward. They
allege that the payment thereof. under said
| circumstances. did not discharge him from
liability for the amount to petitioners.
They pray for Judgment for said sum OF
S335 - with legal interest therein from
March ~. 1872, together with all costs. anu
for general relief.
The defendant first fled an exception al.
leging that the petition set forth no cause
OF action, and on the eighteenth day OF
December. A. -. 1872. filed an answer. re.
serving the brneft OF! the exception and
adopting il as part Of the answer. denied
all and singular the plaintiffs allegations
which tend in any manner TO render him
| liable TO the petitioners. He prayS that
the demand be rejected and the suls dis
missed at plaintitfs' cost.
On the twentv-fourth Of April. 49,! the
plaintiffs wrote to the defendant. and stated
that mo ono was authorized TO sign their
name, that they had never given any one
/
nor 10 accept drafts, indOrse paper of any
kind, nor 10 sign checks. On the sec
Ond of MAY. 1872. they again wrote TO de.
| PENDANT. stating substantially the same
thing.
Tie draft given by Wilson reads as fol-
| lows:
| $33;, L.. SArARTtA. March -, 49,.
At sight. please pay to the order OF Feucht
g. Lockhart $685. L.. value received. and
| charge to account of yourObedlent servant.
X. WILSON.
To ". II. Hogan. ESD. New Orleans.
Endorsed Feucht 4 LOckhart.
On the twenty second of April. 1872, the
| defendant wrote 10 the plaintiff. at Mem.
phis, saying:
GESTLEMES-The draft referred to was
paid in my office in the presence of Mr.. Viii.
| son, amt at his request, TO a man who signed
| your firm's name. Both came here to-
! gether. Yours. truly. ". H. HOGAN.
Fourteen days after this draft was given.
| Wilson was notified that Hesser. who in
| dorsed and collected the draft, mad been
/ dismissed from the service OF MessIa.
| Eeucht 4 Lockhart.
| On the trial of this case statement of
| facts was made to the court, which was in
| substance az follows:
Hesser was, al the time Che draft was
! given by Wilson. and at time of its cOllec-
! ton, the agent of the plaintiffs. He had
| full authority 10 sell goods tor them and 10
| collect bills therefor. That when he pre-
seDted the draft for collection at the office
| of the defendant, the drawer, Mr. Wilson,
| was present and Instructed him to pay II.
| whereupon he did so.
| The plaintiffs counsel maintain that
| although Hesser, a. agent. had authority
! to collect bills for goods sold by him for the
! plaintiffs he did not have authority TO IN
| dOrse the firms name on drafts. notes, etc.
| That such authority must be special 10
bind the firm: and 10 establish this propo-
| ritiOn he cites article I'91 of The Revised
| Civil Code. section five, which declares
| that the power must be express "to draw
| or indOrse bill. of exchange OF prOmissOry
notes" Also. in the case of Dick vs.. Ley
erich. II L.. j1:i. in which the Su.
| preme Court held that 1.-The acceptOV
| who in error pays holder without
| right TO receive. may recover back
the amount" The right OF Hesser TO
! collect the bills in the case before me IS
acknowledged. Also. the case of jackson
| VS.. Commercial Bank > r.. p. 1873. where
| the cour, said: 1.-The forged Endorsement
OF negotiable bill passes No title to an il .
| nOcens indorsee. and the owner may re-
! cover OF the aCceptOr. from whom such ID
! dOrsee has received payment, unless made
| through the owners fault: but thu fa,.lt
must be shown. and the burden of proof IL
| on the party who iustities the payment y
In this instance Hesser had never been AIT
| thOrized to accept drafts. nor 30 indOrse
them. lSee Feuchf & Lockhart's letter
already quoted. OF April en:y-fourth.
| 4. d 1872.
In Nanblbber vs she Bank OF Louisiana
! page iSl, II An, the court said: In pay
| nent o: debt due plaintiffs, their collec-
| tor. such being their usual mode of doing
| business. took zoe debtors check. payab
| ..Jt ~.
| lied to ,ndorse for .hemo forged their in
dorscinenr. and the check was paid by the
| dIawce. bank. whether 10 him or "a stran.
| ger did no: appear. The drawer. a Gus
| toner OF the bank, was in the habit of
| drawing his checks 10 order: bat plaintiff :
| signature was not "n the ii guature book OF
| the bank.
'.Plaintihs having used al! diligence, but
! in vain. to arrest their collector. sued the
| bank. which it was held must paw The
| amount Of the check. In this ease il was
F.: considered that the title 60 the check was
! in plaintiffs, who were not fictitious payess:
! that the title WAS not Invested BIZ an act of
| the collector. beyond The scope OF his
| agency--lin the case before me the taking
| OF the draft. az we'll IA the Endorsement
| thereon. were acts beyond the scope of
Hessei's authority, If they NAV not be
| considered as merely acts OF cOllectiont-
| that plaintiffs had been guilty of no
! negligence. while the bank had: that
there was privity Of eontrac, be-
| tween them. the bank having undertaken
| 70 pay its depOstOrs money 10 such parties
! as the latter might designate: that the bank
| holding the money of the drawer was bound
| to obey tho drawers instructions tpre.isely
what the defendant did in the case before
mel: that by undertaking to obey the in
| stuc,iOns to pay plaintiff, tbv no means
bo 20 of iaraN hap1lna thpIp md