The New York herald., 1879-02-25
THE COURTS.
Important Decision in a Bill Of
Exchange Case.
BOSToN'S BONDSMEN.
Derelicr Executors Legacy OF
Legal Tribulation.

Judge Larremore yesterday delivered an important
opinion as affecting commercial law In the case of
John n. Bixby against Francis A. Drexel and Others
which was tried before him some time ago in the
Common Pleas. Trial Term. without jury. On the
10th of October 1872. tho Arm Of Bowles Brothers &
Co., of this city issued their letter Of credit for
f2OOO to the plaintiff. who. with his and agent
Robert F. Bixby. executed contemporaneohs
agreement IN consideration of such credit facilities
to reimburse Bowles Brothers FOR all sums paid by
them or their agents in good faith under such
credit together with all exchanges. interest and
costs and commission OF one per cent for their
benefit therein. They were further authorized to
reimburse themselves for all such sums and charges
by their draft upon cash in to be deposited
from time to time by Robert +. Bixby. On Novem-
Der 4. 1872. plaintiff being then in Paris. drew his
bill of exchange to the order of James W. Tucker
Co. for f100 directing Bowles Brothers. in London.
to pay such amount three days after sight and
charge the to tho account Of letter of credit
No. $3.50. The bill for value paid delivered by
plaintiff to the payers. who ndorsed the to the
firm OF Clews, Habicht Il Co., by whom it WINS pre-
sented to the drawees who accepted it. payable at
tho Union Bank of London. When the bill matured
it duly presented for payment and protested the
ncceptor being insolvent. No part Of the bill
has since been paid by the drawees any
one in their behalf Notice OF non-payment and pro-
test was given to plaintiff. who thereupon. In No
vember, 1872, paid to James w. Tucker Il Co.. by
their agents in this city. the amount with interest
to Robert F. Bixby plaintiffs agent here by writ
ten order signed by them. representing that the bill
nna the e. se
bankers OF the drawees here which repayment was
made by them without any knowledge OF the fact Of
the non-payment and protest OF the BILL It is
claimed by the defendants that while the written
order for repayment was on it's passage
assigned the same to the Arm Of j. g.
Morgan & Co.,, OF London. and that the
latter constituted the defendants their agent here
receive and collect the same. The defendants. in
ignorance Of the protest Immediately remitted and
paid over the proceeds TO Morgan co; After plain,
tiff had discovered such repayment by his agent, and
before he clatms the defendants had parted with
the possession Of the proceeds or parted with any
for repayment plaintiff notified defendants of
the dshonor of the bill and demanded return Of
prehonsion and mistake. This the defendants re-
fused to do and plaintiff now sues for the recovery
2. the amount raa,d thus paid IN his opinion Judge
and says that the testimony discloses no proof
of bad faith on the part OF the defendants. and.
that as against the tcegraphic remittance which
actually sold to third parties defendants have no
rlamation against the principals. Tho special
ment made which their plaintiff month afterward
sought to impeach. "But," continues the Judge,
II cannot disregard the means which scientific dis
covery has established for the facility Of business
transactions. For q long time the defendants and
their principals had autographed and acted upon
want OF notice. the credit and acceptance by telegram
OF the amount in dispute should be regarded as .
payment within the spirit and meaning OF judicial
authority" Judge Lhrremore further holds that
the circumstances not of such character
~ compelled the defendants to disclose their agency,
they having simply received voluntary payment Of
money, which they at once In accordance with es-
tablished and recognized usage transmitted to their
principals. In conclusion he says ;-'Planiffs must
be held to degree of diligence in charging lin
bility upon the dcfendants. He did nothing until
they had parted with the funds and then claimed
restitution because there u running account be-
tween the defendants and their principals upon
which the amount in dispute might be credited.
cannot recognize the justice OF such claim. The
testimony Is undisputed that the telegraph exchange
account was intended and understood to be actual
payment of the amount transmitted by cable. For
this there should be Judgment In favor Of
defendants for dismissal OF the complaint, with
costs"