
    Augustus E. Foran, Respondent, v. The Royal Bank of Canada, Appellant.
    First Department,
    December 30, 1910.
    Evidence — weight of depositions taken in foreign country — banks — action to recover deposit — facts not justifying recovery — principal, and agent — duty of gratuitous agent.
    The testimony of witnesses taken by deposition in a foreign country is entitled to the same weight as if taken here, even though the foreign witnesses cannot, be punished for perjury in our courts.
    Action against a bank to recover a deposit which the plaintiff alleged had been expended by the defendant in purchasing stock not ordered by him, the claim being that the defendant through mistake had purchased the wrong stocks. - Evidence examined, and held, that a verdict for the plaintiff was against the weight of the evidence.
    
      It seems, that a bank which receives money on deposit to be applied to the payment of stock, although acting gratuitously, must exercise the care which is customary with banks under like circumstances.
    Appeal by the defendant, The Royal Bank of Canada, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of April, 1910, upon the verdict of a jury, and also from an order entered in said- clerk’s office on the 31st day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry G. Gray {George ZabrisMe with him on the brief], for the appellant.
    
      M. A. Lesser, for the respondent.
   Laughlin,. J.:

This action is brought to recover the sum of $1,500; which the. plaintiff claims to have deposited at the defendant’s branch banking office in the city of St. Johns, FT. F., to be applied in payment, of ■fifteen shares of the capital stock of the Intensified Light and Super Soda Company, which were to be delivered to the plaintiff through said bank by one Dove, from whom he purchased the same. The defendant surrendered and paid out plaintiff’s money for. fifteen shares of the capital stock of the Maritime Light and Power Company. Upon the trial three questions of fact were litigated and submitted to the jury, namely: (1) Whether plaintiff intended to purchase fifteen shares of the .capital stock of the Intensified Light and Super Soda Company or of the Maritime Light and Power Company; (2) whether the defendant had reasonable grounds for believing that the plaintiff intended to have it deliver the money in payment for stock in the Maritime Light and Power Company; and (3) whether plaintiff did not ratify the payment, of his money by the defendant for the Maritime Light and Power Company stock. Upon each of these propositions the jury found in favor of the plaintiff.

We are of opinion that the verdict is against the weight of evidence upon each of these three questions of fact. It is even doubtful whether the evidence required that the case should be submitted to the jury at all. The record, however, while showing that a motion for the dismissal of the complaint was made at the close of the plaintiff’s case, does not show that any ground for the motion was specified; and the same is true with respect to the motion for a direction of a verdict at the close of the evidence,- which the record shows was on the same grounds ” as the motion for a nonsuit and on the further ground that the defendant was acting solely as the agent of Dove, from whom the plaintiff purchased the' stock. It is not entirely clear, therefore, that the record, technically speaking, presents for decision the question as to whether the case should have been submitted to the jury, but. the merits of the case are involved in a consideration of the questions presented for review.

The plaintiff was "formerly a resident of St. Johns, N. F., but for a period of ten or eleven years prior to the date of the transactions in question he had resided in the city of New York. He, however, knew Mr. Crowdy, who was the manager of the defendant’s branch banking office at St. Johns, but he never had any money on deposit with the defendant there and never had any business-dealings with it until he wrote Mr. Orowdy, as such manager, from London, Eng., under daté of August 28, 1906, as follows:

In reference to the certificate of stock which you hold, made out in my name and which there is the sum of $1250 yet to be paid, I wish to sáy I have written today to my brokers in Philadelphia to send you at once a draft for said amount. Will yon kindly send the certificate to Messrs. De Haven & Townsend, Drexel Building, Chestnut St., Philadelphia, on receipt of the money 2
“ Hoping you are well arid with best wishes, I am
“Yours truly,
“ (Sgd) A. E. FORAN.
■“ P. S. If you should wish to communicate with me address Bristol Hotel, Vienna, Austria, for about six months.
“ (Sgd) A. E. F.”

It will be observed that the plaintiff here did not give the bank the ■name of the company, but left it to act on the assumption that others were representing him, and ■ that it was at liberty to deliver' to him any stock that it then held made out in the plaintiff’s name. Defendant never held any Intensified stock, and at this time it held no stock made out in the plaintiff’s name; but it held a cértificate for fifteen shares of the capital stock of the Maritime Light and Power Company, Limited, in the name of C. .F. Taylor, which' it was advised by the company was to be exchanged for a certificate in the plaintiff’s name.

■ On the 27th of March, 1906, an account was opened with the defendant at St. Johns in the riame of Arthur J. Dove, General Manager Maritime Light and Power Company, Ltd., and it was closed December 18, 1906. On the 24th of April, 1906, Dove, as manager of said company, forwarded to defendant by mail certain certificates of stock in said coinpany, with a statement . of the-amount due on subscriptions thereon, to collect the balance due on subscriptions therefor, and among other certificates Nos. 23 and 24, for which C. F. Taylor had subscribed and on which there was due the sum of- $1,500. Taylor had previously paid $500 on this stock through defendant. In due course of mail from Toronto, after May eighth, defendant received certificates 25 and 27 for seven and eight shares respectively of this company’s stock in the name of said Taylor, i’riclosed with a letter from a firm of lawyers who were the solicitors for the company* requesting that Taylor b'e notified to call and pay $1,500 and get-the stock, and saying that they understood that Taylor was to transfer the stock -to “ M. Foran.” -May 10,1906, Dove as such manager wrote defendant - saying that a block of $1,500 stock made out in the name of Augustus E.. Foran would be forwarded to it to be delivered to Taylor on payment as per request of plaintiff to Dove; and Dove wrote to defendant another letter the next day, saying his former letter referred to the fifteen shares of stock sent by the solicitors. On the 26th of June, 1906, defendant, by direction of Taylor, paid $500 to Dove as money on account of the stock, and charged the same to Taylor’s account in said bank. On the fourteenth of August Dove wrote to defendant, saying that two certificates, one for ten shares in Taylor’s name and one for fifteen in the name of A. E. Foran, would be forwarded, and on receipt thereof he directed that the forty shares in Taylor’s name be returned, and that Taylor be notified. Defendant received the fifteen shares in Foran’s name with a letter from the solicitors under date of September 20, 1906, together with the certificate for ten shares in Taylor’s name, with instructions to deliver them to Taylor on payment of $1,000. Meantime defendant, at the request of Dove, had been endeavoring to collect the balance owing on this stock from Taylor, who represented from time to time that he was expecting a remittance from plaintiff. Mr. Crowdy, as such manager, received a letter under date of September 10, 1906, and inclosure from the firm of De Haven & Townsend, of Philadelphia, who were brokers and bankers, and authorized to represent plaintiff in the premises, as follows:

“ As directed by Mr. A. E. Foran, we enclose herewith draft for $1,250 on De Haven & Townsend, Hew York, in payment of 15 shares Intensified Light & Supersoda Co. stock. We are advised by Mr. Foran that the certificates are in his name. Will you kindly forward them to us at your convenience ? He also states that he has written to you in the matter.”

To this letter Mr. Crowdy, as manager, replied under date of September 18, 1906, as follows :

“We have received your favor of 10 th inst., with enclosure as stated. At present we are not in possession' of certificate for 15 shares in the Maritime Light & Power Co., Ltd., .in the name of Mr. A. E. Foran, but hold one for that number in the name of Mr. C. F. Taylor, which, the company advises us, is to be changed for one in Mr. Foran’s name. We shall retain the money until we receive the certificate, which will be forwarded to you immediately on receipt.”

On the 24th of September, 19Ó6, Mr. Crowdy inclosed a certificate for fifteen shares of the capital stock of the Maritime Light and' Power Company, with a letter to De Haven & Townsend, which.has not been produced, but which he says designated the stock as the Maritime stock; and under date of October 1, 1906, De Haven & Townsend acknowledged receipt of this letter and inclosure as follows:

“ Tour favor of the 24th ulto. received, enclosing certificate 15 shares Maritime Light & Power Co., Ltd., in name of A. E. Foran ; for which please accept our thanks.”

Ho claim was made that the defendant misapplied- the money until more than a year thereafter, when both companies had failed owing to the invalidity of certain patents, and then plaintiff did not afford defendant an opportunity to remedy the alleged mistake but insisted on the return of his money and canceled any agency to receive Intensified stock for him. What information, if any, the plaintiff received from his brokers and bankers concerning the transaction does not. appear; but in the month of October, 1907, the day after he returned from Europe, the certificate of stock, together with a letter from Mr. Crowdy, with which it was inclosed to the brokers, was .delivered to him, and thereafter at a time not definitely specified, but probably the same month, he had an interviéw with Mr. Crowdy, in which he claims to have complained of the action of the bank in paying out his money for Maritime Light and Power Company stock, and in' which he tendered back the certificate and demanded the return of his money. • Mr. Crowdy says that after complaining plaintiff expressed himself as satisfied with the action of the bank. Thereafter, on the 16th of December, 1907, plaintiff wrote a letter to the defendant at Montreal and to.Mr. Crówdy, complaining of the transaction and demanding a return of his money, and on the thirtieth .day of the same month he inclosed the certificate with a letter to Mr. Crowdy. On the 8th day of January, 1908, Mr. Crowdy inclosed the certificate to the plaintiff with a letter in reply to his letters of the 16th and 30th of December, 1907, denying any responsibility and drawing attention to an agreement made between plaintiff, Dove and Taylor in Hew Tork.

The plaintiff claims that he was not aware until some time after he received the stock from the brokers that it was not the stock he intended to purchase, but his testimony on that subject is impeached by a letter which he wrote to Dove from Lucerne on. the 16th day of June, 1907, in which he expressly refers to the stock purchased by him for $1,500 as stock of “ the Maritime Lt. & Power Co.,” and by the fact that Dove at his request forwarded to him by mail circulars with respect to the machines manufactured by the company witli photographs and a prospectus of the company, none of which did he produce upon the trial, and that all of the correspondence he received from Dove was on letter heads of the Maritime Company. Moreover, it appears that he knew intimately both Dove and Taylor; that the only information he had about either of these companies was that derived from Dove and Taylor; that Taylor informed him at the Waldorf Hotel in Hew York, in the latter part of April, that he had purchased twenty-five shares of stock in a splendid Canadian company with which Dove was connected; that he himself drew this to Dove’s attention when they met at the same place the same evening, and manifested an interest in it and expressed a desire to purchase stock to the extent of $1,500, and it was arranged between him and Taylor and Dove that if on Dove’s return to Canada there were not fifteen shares of stock available for sale to him, he was to have fifteen of the twenty-five shares of stock purchased by Taylor, and that he was to deliver to Taylor, who was a merchant at St. Johns, $250 to apply on the stock, and by subsequent correspondence Dove was given to understand that Taylor would represent him and take the stock up for him when it was received. The plaintiff testified that the stock which he agreed to purchase was stock in the Intensified Light and Super Soda Company, which was a parent company with several subsidiary companies. He is flatly contradicted by the testimony, of Dove and by the significant and persuasive facts that the stock which Taylor purchased was stock in the Maritime Light and Power Company, and that the only stock Dove was selling was stock in that company, and that he was neither interested in nor connected with the other company. It is evident that the plaintiff did not know one company from the other, excepting as he was informed by Taylor and Dove, and at the time the stock was received by his brokers he would have accepted the stock in one company as readily as the stock in the other, for the inducing causes of his purchasing the stock were the facts that Taylor had confidence in it and was purchasing some of it and that their mutual ‘ friend Dove was connected with it. ' Taylor attempts to' corroborate plaintiff by testifying that the stock he had agreed to purchase and which .plaintiff agreed to purchase was stock in the Intensified Company ; but he accepted and retained with full knowledge and without 'protest the Maritime stock; and thus his testimony that he and ■ plaintiff purchased the other stock is entitled to but little weight. It is also a reasonable inference that ■ plaintiff’s brokers informed him when they received the stock, and it' is probable that in communicating with him with respect to it they specified the Maritime Light and Power Company stock, as they did in their letter to Mr. Crowdy. acknowledging its receipt. ■ '

Counsel for plaintiff seems to contend that the testimony of certain witnesses taken by deposition in Canada, is not entitled to the-same Weight as if given here, and his theory appears to be that they' could not be prosecuted for perjury. Of course witnesses who testify by deposition abroad cannot be prosecuted for perjury here; but it must be assumed that other countries with whom we have treaty relations,, and between which and our country the comity of taking evidence in one country for use in the other exists, will make such a comity effective by declaring, as do we, that false testimony given by deposition to be used abroad is perjury as if for use at home. (People v. Martin, 77 App. Div. 396; affd., 175 N. Y. 315.)

As already observed the finding that there was any mistake made with respect to the stock which the plaintiff intended to purchase is clearly against the weight of evidence. There is no ground for suspecting that the defendant acted otherwise than in perfect good ' faith in this transaction. If, therefore, the plaintiff did intend to purchase Intensified Light and Super Soda Company stock the defendant is not at fault. His first letter left it free tó accept-for him any stock which it held in his name, and by the information which it had evidently received from the company at the instance of Dove, it would reasonably and naturally infer that the stock which it then'held which was intended'for him, although not then made out in his name, was the stock to which he referred. Having thus been lulled into security through the plaintiff’s failure to be more specific in his letter, it was not -on its guard when it received the letter from his brokers referring to Intensified Light and Super Soda Company stock. It acted on the assumption, and I think this was warranted by the facts, that the brokers’ letter referred to the same stock which it then held which was intended for the plaintiff, although not made out in his name, and it was a reasonable assumption that if this were not so the brokers would advise it in answer to the letter in which it informed them that it held Maritime Light and Power Company stock which was to be transferred to the name of the plaintiff; and when shortly thereafter, it forwarded the stock to them, the undisputed evidence showed, and it was stipulated, that the defendant was acting as the agent of Dove in delivering the stock and in collecting the purchase price thereof. Although the defendant had no express contractual relations with the plaintiff, it doubtless owed him the duty when it accepted the agency of receiving his money on deposit, to be applied in payment for the stock, of exercising some care in parting with his money. Although it ivas not obliged to act in the premises at all, yet, having seen fit to accept the money on deposit for a particular purpose, even though gratuitously, it was, I think, called upon to exercise the ordinary care that would usually and customarily be exercised by bankers under like circumstances.

We are of opinion, however, that upon this evidence the plaintiff. utterly failed to show that the defendant did not fully perform this duty. It follows, therefore, that the judgment and order should be reversed and a new trial granted, with, costs to appellant to abide the event.

Ingraham, P. J., McLaughlin,. Miller and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  