Township of Washington v. First National Bank

Hooker, J.

(dissenting). The question in this case is whether an assignee of a chose in action, consisting of a sum to be earned by the assignor under a partially performed contract between itself and a township for the building of a bridge, is estopped from asserting its title against a subsequent assignee of the township warrants issued upon its treasurer to and in the name of the assign- or on full performance of the contract, under the rule laid down in McNeil v. National Bank, 46 N. Y. 325 . The assignment was in writing, a copy of the contract between the township and the assignor was attached, and it contained a promise by the assignor to collect and remit the moneys to become due thereon, without expense to the bank, to the full satisfaction of a note held by the bank, given by the assignor.

It may be assumed that any chattel may become the object of an estoppel, and the true and rightful owner may be precluded by his own misconduct, and perhaps in *577 some cases by negligence, from asserting bis title. In this case the acts which are said to raise an estoppel áre the failure to require possession of the original contract and the consent that the assignor should receive and remit payment from the township. It is argued that this necessarily contemplated the issue of orders to and in the name of the bridge company, and therefore was permitting it to obtain, or, in other words, investing it with, the indicia of title and apparent right to dispose of the orders. So far as the mere fact of not receiving the original contract is concerned, it may be eliminated, as it does not appear that the Wabash bank saw it, or knew or even inquired whether the bridge company had assigned it or then had possession of it, and therefore it was not misled by the apparent possession of the contract into the belief that the assignment gave the indicia of title. We do not, however, mean to intimate that the failure to take the contract might of itself create an estoppel.

The leading case supporting the claim of counsel for the Wabash bank is McNeil v. National Bank, supra. In that case, where an owner of corporate stock assigned the certificates in blank, which was the usual method of transferring stock, and delivered them to a broker who was one of a class usually engaged in the sale of stock for others, it was held that the assignor was estopped from denying the validity of a transfer of the stock by the broker to a bona fide holder, because he had by a writing over his signature not only conferred the apparent title upon the broker but had also given him a power of attorney to transfer the same according to the usual method.

It appears to be conceded that the delivery of past-due negotiable paper (which is therefore nonnegotiable) indorsed in blank, if for a special purpose, does not estop the indorser from disputing the title of a subsequent purchaser in good faith from the indorsee, though that is the usual way of transferring such paper, where not payable *578 to bearer, and we should hesitate to say that the owner of a note payable to bearer is estopped by delivering after maturity for a special purpose, even if it be to an agent or attorney for collection, from denying the title of one to whom it has been wrongfully or fraudulently sold and transferred. See Davis v. Beckstein, 69 N. Y. 440 .

The case of Moore v. Moore, 112 Ind. 149 , is distinguishable in this, viz.: That, though the indorsement and delivery was procured by fraud and without consideration, it was not delivered for a special purpose, but under a contract which contemplated the actual transfer of the title. See Osborn v. McClelland, 43 Ohio St. 284 ; Wood v. McKean, 64 Iowa, 16 ; Woodsum v. Cole, 69 Cal. 142 .

These cases seem to hold that it requires something more than an unqualified indorsement or assignment of nonnegotiable paper to create a presumption of absolute title, in view of the many cases of and reasons for transfers absolute upon their face; in other words, these are not enough of themselves to invest one with “that apparent indicia of title ” which raises an estoppel. In McNeil v. National Bank, supra, the court said :

“ Simply intrusting the possession of a chattel to another as depositary, pledgee, or other bailee,' or even under a conditional executory contract of sale, is clearly insufficient to preclude the real owner from reclaiming his property, in case of an unauthorized disposition of it by the person so intrusted. (Ballard v. Burgett, 40 N. Y. 323 .)

“ ‘The mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell * * * will not enable the possessor to give a good title.’ Covill v. Hill, 4 Denio (N. Y.), 327.”

The opinion continues:

“ But if the owner intrusts to another, not merely the possession of the property, but also written evidence, over his own signature, of title thereto, and of an unconditional power of disposition over it, the case is vastly different. There can be no occasion for the delivery of such documents, unless it is intended that they shall be used, either *579 at the pleasure of the depositary, or under contingencies to arise. If the conditions upon which this apparent right of control is to be exercised are not expressed on the face of the instrument, but remain in confidence between the owner and the depositary, the case cannot be distinguished, in principle, from that of an agent who receives secret instructions qualifying or restricting an apparently absolute power.

‘ ‘In the present case the plaintiff delivered to and left with his brokers the certificate of the shares, having indorsed thereon the form of an assignment, expressed to be made ‘ for value received,’ and an irrevocable power to make all necessary transfers. The name of the transferee and attorney and the date were left blank. This document was signed by the plaintiff, and its effect must be now considered.”

See a discussion of this question and case in 2 Pomeroy on Equity Jurisprudence (3d Ed.), § 710, and note 2.

The question, then, is not whether a nonnegotiable chose in action may be so treated by its true owner as to create an estoppel against him to assert his title, but whether the circumstances before us should be given such effect. What are they ? The Huntington bank purchased and took an assignment of this claim. This assignment upon its face clearly showed the purpose for which it assented to the collection of the money to become due. If it can be said that the bank tranferred the absolute title to this fund, or the warrants, which counsel' agree to have been the method of payment which the parties must have contemplated for the reason that such is the only method of payment contemplated by law, it is plain that it restricted their use, and that the instrument plainly negatives any authority to sell them. If the Wabash bank did not see this assignment, it was not misled by it as an indicia of title. If it did, it was fully advised of its restrictions. Therefore, the case is left to rest upon the bare fact that the bridge company was allowed to have possession of the order, a nonnegotiable instrument, and is certainly a case no stronger than as though the Huntington bank had itself taken into its possession the orders *580 contemplated by the contract, and delivered them for the special purpose of collection. Again, if the bridge company had the right to take orders in its own name, it was not authorized to take them in the name of C. H. Wheaton. In short, we should look in vain for anything over the signature of the Huntington bank conferring indicia of absolute title or unlimited authority to receive and negotiate the town orders issued. The estoppel, if there be one, must rest, not on a writing such as has been described in McNeil v. National Bank, supra, but upon a failure to put it out of the power of the bridge company to fraudulently obtain in its own name and for its own purposes the orders.to which the assignee had the true right.

We are of the opinion that this case is within the rule of Bush v. Lathrop, 22 N. Y. 535 , and that the application of any other rule would go far towards obliterating the well-settled rule that nonnegotiable paper is taken subject to the equities of the true owner and making all choses in action practically negotiable, which, if it is considered desirable, should be left for the legislature to do. See Combs v. Hodge, 21 How. (U. S.) 397; Knox v. Eden Musee Americain Co., 148 N. Y. 441 (31 L. R. A. 779); Jarvis v. Manhattan Beach Co., 148 N. Y. 652 (31 L. R. A. 776); Cutts v. Guild, 57 N. Y. 229 ; Commercial Nat. Bank v. Burch, 141 Ill. 519 ; Patterson v. Rabb, 38 S. C. 138 (19 L. R. A. 831); Sutherland v. Reeve, 151 Ill. 385 ; Schafer v. Reilly, 50 N. Y. 61, 66 .

We do not discuss at length the question of the Bowen claim, as it is sufficiently covered by what has been said.

The decree should be reversed, and a decree entered here in favor of the Huntington bank.

Ostrander, J., concurred with Hooker, J.