Merrill v. Wells, Fargo & Co.

The evidence shows, without contradiction, that the bill of exchange in question was forwarded by Brewer & Co. to the plaintiff for collection only. It is not pretended that he received it originally, except as an agent for collection. If he continued, as between himself and Brewer & Co., to hold the bill only in that capacity, it is too clear for argument that he suffered no damage by the neglect of the defendants to cause it to be protested. He could have had no recourse upon Brewer & Co. in that event, for the reason that, as between themselves, he was not the owner of the bill, and held it only as their agent. But the evidence shows that Brewer & Co. were then indebted to the plaintiff on an account current between them, and that on receiving the bill, the plaintiff voluntarily and without their knowledge credited them on his books with the amount of it, and in his next quarterly account, rendered to Brewer & Co., while ignorant that the bill had not been paid, included this as an item to their credit. It is contended by counsel that by this transaction, the plaintiff, as between himself and Brewer & Co., made the bill his own, and held it thenceforth, not as agent, but as owner; and that by reason of the neglect of the defendant he has lost his recourse upon Brewer & Co., the- drawers. Whatever presumptions might arise from these facts if unexplained, it is clear, we think, that they were open to explanation. In a contest between the plaintiff and Brewer & Co. in respect to this item in the account, it cannot be doubted that it would have been competent for either party to show that the credit was entered through inadvertence or mistake, or in accordance with the *112course of dealing between the parties, and that it was intended as a mere memorandum to simplify the method of keeping the account by entering a credit for the bill when received for collection, and subsequently a debit for the same amount, if the bill should not be collected. In other words, that it was merely a matter of bookkeeping, and was not intended to affect the rights or relations of the parties. The defendant offered in evidence certain letters from the plaintiff to Brewer & Co., which tended strongly to show that the plaintiff so understood the transaction, and that in crediting the bill to them, he had no intention whatever to make himself the owner of it. In short, that the entry was merely a matter of bookkeeping, and was in accordance with the course of dealing between the parties. That such evidence would have been competent between the plaintiff and Brewer & Co. in respect to this item, we entertain no doubt, and no reason is perceived why it is not equally available to the defendant. The court erred in excluding these letters, and as the judgment must be reversed for this error, we deem it unnecessary to notice the other points discussed by counsel.

Order and judgment reversed, and cause remanded for a new trial.