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C. C. Huntley, in his answer, denies that plaintiff ever acquired any interest in the purchase from Parker, or that the paper of December 22, 1874, of the signing of which he had no recollection, was intended to be anything more than a declaration or admission of the parties that Barlow was authorized to receive the money that might become due to the company from time to time. He says: “I did not in said paper writing intend to admit, nor have I ever admitted, nor do I now admit, but, on the contrary, deny, that the said plaintiff was, or is, or was to be, an equal owner with me in the said onethird interest in said Northwest Stage Company, its property, profits, assets, etc., except in the event of the repayınent to me of the said sum of $45,000, so expended in the purchase of said shares as aforesaid, with interest thereon; and, although no agreement to that effect was ever entered into, I have always been, and am now, willing that the said plaintiff shall have all the profit that has been made or derived in respect of one-sixth interest in said Northwest Stage Company, and said one-fourth interest in said Oregon & California Stage Company, since the first day of July, 1874, provided there be first repaid to me the said cost price of said purchase, to-wit, the said sum of $45,000, with interest from June 27, 1874."
By the decree of the court below, in special term, it was adjudged that plaintiff recover of the defendant Barlow one-sixth of the property and money in his hands of the Northwest Stage Company, and the latter was enjoined from paying to C. C. Huntley any part thereof. The cause was referred to an auditor to ascertain the amount of plaintiff's interest, and to state all proper and necessary accounts. Upon appeal to the general term that decree was reversed, with costs.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:
•While there is some conflict in the testimony as to the circumstances attending the purchase, by C. C. Huntley, of Parker's interest in these companies, we are of opinion, upon a careful examination of the evidence, (1) that the purchase by C. C. Huntley was pursuant to an understanding between him and Barlow that the latter should have one-half of the Parker in. terest in the Northwest Stage Company, and with the purpose, on the part of C. C. Huntley, that S. S. Huntley should have the other lialf. (2) That before such purchase, S. S. Huntley was informed by C. C. Huntley of the latter's intention to let him have one-half of that interest. (3) That, at the time of such purchase, there was an unsettled account between C. C. Huntley and S. S. Huntley, in respect as well of services rendered by the latter as agent and general manager for the former, as of mail contracts and business in which they were jointly interested, other than those relating to routes not occupied by the Northwest Stage Company, or other companies with which Barlow was connected. (4) That C. Č. Huntley, in execution of his avowed purposes with reference to S. S. Huntley, verbally agreed with the latter, while they were together in the west in the summer or fall of 1874, after the purchase from Parker, that he should have one-half of the original Parker interest in the two companies—that is, the remaining one-sixth interest in the Northwest Stage Company, and one-eighth interest in the other company-at the price wbich C.C. Huntley had paid for them; the amount, if any, due to S. S. Huntley, on account of the before-mentioned services and contracts, to be applied in payment, as far as it would go, for the interests so transferred to himn. (5) That the ownership of those interests by S. S. Huntley was not to be deferred until a settlement of accounts between him and C. C. Huntley was had, but was to take effect as of July 1, 1874, when the new contract term of those companies commenced. (6) That the writing of December 22, 1874, was executed because of the then contemplated absence of C. C. Huntley in Europe, for the benefit of his health, and to show the interest wbich's. S. Huntley had previously acquired, and then, under the
agreement with C. C. Huntley, actually had in the property and business of the Northwest Stage Company. (?) That, thereafter, all parties concerned in the affairs of that company, including C. C. Huntley, recognized and treated S. S. Huntley as the owner of one-sixth interest in its property and assets; subject, however, so far as C. C. Huntley was concerned, to the liability of S. S. Huntley to reimburse him for the amount which that interest had cost.
In behalf of the appellee Huntley, it is contended that the verbal agreement, upon which appellant relies as the foundation for his claim, is void under the seventeenth section of the statute of 29 Car. II. c. 3, which is in force in the District of Columbia, and which provides that “no contract for the sale of any goods, wares, and merchandise, for the price of ten pounds sterling, or upward, shall be allowed to be good, except the buyer shall accept part of the goods sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum, in writing, of said bargain be made and signed by the parties, to be charged by such contract, or their agents, thereunto lawfully authorized.” Kelty, Eng. St. 242, (Thomp. Dig. 221.) The argument in support of this proposition is that the Northwest Stage Company was a species of partnership with joint stock divided into transferable shares, which could be disposed of by the owner without the consent of his partners; that such shares were substantially like stock in corporations or regular joint-stock companies; and that the alleged verbal sale of an interest in that company was void under the foregoing statute, because, as is claimed, the words “goods, wares, and merchandise," as therein used, properly embrace, not merely palpable personal property having an intrinsic value, but also stocks in chartered corporations, shares or interests in joint-stock companies, or private partnerships having the incidents of such companies, notes, checks, bonds, and other evidences of value.
Without determining whether this statute governs the rights of the parties, or whether this interpretation of its provisions is sustained by the weight of authority, or whether the writing of December 22, 1874, is not itself a sufficient memorandum in writing of the sale in question, it is enough to say that the contract between C. Č. Huntley and S. S. Huntley was so far executed that the rights and obligations of the parties cannot be affected by the statute. To the extent that it was possible or necessary in respect of property of this character, the vendee was placed in possession of that which he purchased. This is shown by the evidence of several witnesses, and is established by the paper of December 22, 1874, which declares that S. S. and C. C. Huntley are the owners of one-third of the stock, property, and effects of the Northwest Stage Company, and, as such and to that extent, are to share in all the mail routes then lately operated by that company, and to share, in the future, in the profits, losses, and expenses appertaining thereto. There is some evidence tending to show that when this paper was executed, C. C. Huntley was in poor health, but it falls short of proving that he was incapable, in law, of becoming a party to such an instrument. Nor does his answer assert any such incapacity as a ground of defense. Besides, that writing is in accordance with the understanding reached between him and S. S. Huntley prior to its execution.
The decrees, in general and in special term, are, in our judgment, erroneous; the former because it denied all relief to the plaintiff; and the latter because it proceeded upon the ground that the evidence showed that S. S. Huntley had fully paid for the interest sold and transferred to him by C. C. Huntley. The case should go to an auditor, to ascertain the amount, if any, fairly and justly due S. S. Huntley from C. C. Huntley at the time of his purchase from C. C. Huntley; such amount to be applied in payment of S. Š. Huntley's indebtedness to C. C. Huntley, on account of the purchase from the latter of one-half of the Parker interest in the Northwest Stage Company. And
if C. C. Huntley was not indebted to S. S. Huntley at that date, then the former will be entitled to be reimbursed out of the funds in the hands of Barlow, for all that he paid for the one-sixth part sold to S. S. Huntley, with interest thereon from the time of the purchase from Parker; the balance, if any, to go to S. S. Huntley. Such further decree should be rendered after the report of the auditor as the facts thus disclosed will justify or require.
The decree below is reversed, with direction for such proceedings as will be consistent with this opinion.
(114 U. S. 401)
STATE NAT. BANK OF BOSTON 0. UNITED STATES.
(April 13, 1885.) FRAUDULENTLY OBTAINING MONEY FROM BANK TO REFUND MONEY DUB UNITED STATES
- LIABILITY OF UNITED STATES TO BANK.
Where, by the connivance of a clerk in the office of an assistant treasurer of the United States, a person unlawfully obtains from that office money belonging to the United States, and, to replace it, pays to the clerk money which he obtains by fraud from a bank, the clerk having no knowledge of the means by which the latter money was obtained, the United States are not liable to refund the money to the
bank. The case distinguished from U. S. v. State Bank, 96 U. S. 33. Appeal from the Court of Claims. Geo. O. Shattuck, for appellant. Sol. Gen. Phillips, for appellee.
HARLAN, J. The appellant brought this action in the court of claims to recover from the United States the sum of $125,000, with interest from March 1, 1867. The petition having been dismissed, the question upon this appeal is as to the liability of the United States to any judgment in behalf of the appellant. The facts found by the court of claims, and upon which the correctness of the judgment below must depend, are as follows:
The appellant, in February and March, 1867, was a national banking association, having its place of business in the city of*Boston, Massachusetts; and there was in that city a firm of brokers under the style of “Mellen, Ward & Co.," the junior member of which was Edward Carter. At the same time, George D. Whittle was the chief clerk in the office of the assistant treasurer of the United States, in Boston, having its general management, and Julius F. Hartwell was disbursing clerk or paying teller. Prior to the twenty-eighth day of February, 1867, Mellen, Ward & Co., acting through Carter, succeeded in inducing Hartwell to take out of the sub-treasury, at various times, and to place in Carter's hands, large amounts of money belonging to the United States, until, first and last, the sum so abstracted aggregated a million to a million and a quarter dollars. This money was used by Mellen, Ward & Co. in stock speculations. About the middle of February, 1867, the amount so obtained by Carter being then very large, Hartwell informed him that in the use of the public money they were guilty of a crime. This, it is found by the court below, was the first information Carter had of the criminal character of these transactions.
Between the middle of February and the first of March, 1867, several conversations were held between Carter and Hartwell, in which the former expressed his purpose to make the latter's money right for the examination of the sub-tresury, which was expected to take place on the first of March, upon Hartwell's solemn assurance that he would let him have the money out of the sub-treasury again on the second of March, after the examination should be over, when Carter would repay the parties the moneys he had obtained, and, selling all the stocks and securities his firm held, replace as much as possible of the money in the sub-treasury, so as to reduce the loss to the smallest possible amount Carter promised Hartwell that he would return all the money before the first of April, not again to come out of the sub-treasury. During
the period within which those conversations between Carter and Hartwell oc. curred, the latter knew in a general way the extent of the resources of Mel-, len, Ward & Co., and how they were using the money he had let Carter have. * On the twenty-eighth of February, Carter returned to Hartwell all the money the latter had let him have, except the sum of $157,000, which the former promised to return to him the next morning. Among the funds so returned were United States gold certificates to the amount of $580,000. On the afternoon of the same day, Hartwell made known to Whittle that he had been loaning to Carter the funds of the government, and that all had been returned except about $150,000. He told Whittle that the money had been paid out to Carter, from time to time, to assist in stock speculations; that it was paid back again to tide over the monthly examination; that he had promised Carter that the money should be repaid to him the following day; and had told him that he would ask Whittle's consent that the money go back to him again. Whittle
. told Hartwell that it was an impossibility to let the money go back to Carter, and that any deficiency must be paid in before 10 o'clock the next morning.
About 9 o'clock A. M., of the first of March, Hartwell called on Carter at Mellen, Ward & Co.'s câlice and asked him if he had that money. Carter told hira he did not then lave it, but could give it to him before 10 o'clock, and asked Hartwell if he could not take a draft on New York, stating to him that Mellen, Ward & Co. would have a very large amount of New York funds to dispose of as soon as Hartwell returned to them the gold certificates aforesaid. Hartwell said he would take the New York funds, and the interview then ended. It does not appear that up to this time Carter had any knowledge or intiination of Hartwell's disclosures to Whittle; nor does it appear that Carter informed Hart well as to how he intended or expected to get the draft on New York. At the close of this interview, Hartwell returned from Mellen, Ward & Co.'s office to the sub-treasury. About half past 9 o'clock of the same morning, Carter went to the banking house of plaintiff and obtained froin Charles H. Smith, its cashier, his draft, as cashier, on the Manhattan Company, New York, in favor of Mellen, Ward & Co., for $125,000, which draft was in thu words and figures following, to-wit: * “THE STATE NATIONAL BANK OF BOSTON,
BOSTON, March 1, 1867. "Pay to the order of Mellen, Ward & Co., one hundred and twenty-five thousand dollars. "No. 215.
C. H. SMITH, Cashier. "To the cashier of the Manhattan Company, New York."
The facts and circumstances connected with his obtaining that draft were as follows: Carter asked Smith for the bank's draft on New York for $125,000, promising to give him immediately, in return, Mellen, Ward & Co.'s draft on New York for the same amount, with $100,000 in United States gold certificates attached, or else the Adams Express Company's receipt for that amount in gold. Upon the faith of this proinise, Smith drew and delivered to Carter the draft aforesaid. In this interview between Smith and Carter nothing was said by the latter about there being any deficiency in the sub-treasury for which he was responsible; nor that he desired to use the draft to help make good a deficiency there; nor what his purpose was in obtaining it; nor does it appear that Smith had, at any time before or during this interview, any knowledge or intimation of the transactions between Carter and Hartwell. Within 15 or 20 minutes after Carter received from Smith the draft for $125,000, the former, at the office of Mellen, Ward & Co., delivered it, together with $32,000 in currency, to Hart well. The latter paid Carter nothing for the draft; it was passed to him by Carter to make good that deficiency;
and Carter supposed it would not be wanted for that purpose over an hour. Neither before nor at the time Hartwell received from Carter the draft for $125,000 did the former know anything of the means by which the latter obtained it from Smith.
Immediately after Hartwell received that draft and the $32,000 in currency from Carter, he took both to the sub-treasury and delivered them to Whittle, who objected to receiving the draft, because the rules of the government required the sub-treasury to receive nothing but gold, silver, legal-tender notes, or national bank notes; and, besides, he had an impression that, in some form or other, the plaintiff's cashier was involved in the stock speculation, which Hartwell had, the day before, told him of Mellen, Ward & Co.'s being engaged in; for Hartwell had then, after Whittle's refusal to let the money go out again, mertioned, among others, the name of Smith as one who was going to be hurt. Whittle then directed Hartwell to go out and collect the currency. Hartwell tried at several banks to raise the currency on the draft for $125,000, but could not find sufficient amount in any one bank. He then went to the Eagle National Bank of Boston, and obtained from it, in exchange for that draft, three of its drafts on New York, one for $75,000, and two for $25,000 each, with the idea that currency might be obtained in smaller amounts at different banks; but the hour was so late then-it being about 10 o'clock—that he took the three drafts directly to Whittle, at the sub-treasury, saying to him that he had olitained them from the cashier of the Eagle National Bank, in exchange for the draft for $125,000, and that was the best he could do. The government examiners were at that time at work in the sub-treasury upon their monthly examination of the funds therein. Whittle then went out from the sub-treasury with the three drafts of the Eagle National Bank, and sold them to the Second National Bank of Boston, and returned to the sub-treasury with the proceeds of the sale, $125,000 in currency, which he turned over, along with the $32,0011 aforesaid, to the examiners. These sums made up Hartwell's deficiency, and balanced the cash account of the office. No part of the $157,000 which those two sums made up, was ever returned to Hartwell, or Carter, or Mellen, Ward & Co., or the plaintiff. Neither when the draft for $125,000 was taken by Hartwell to Whittle, nor when it was exchanged by the former for the drafts of the Eagle National Bank, did Whittle have any knowledge or notice of the consideration or means by which that draft had been obtained from the cashier of the appellant; but he had an impression that Carter had procured it.
About 15 or 20 minutes after Smith delivered the draft for $125,000 to Carter, as heretofore stated, Smith went to Mellen, Ward & Co.'s office to inquire the reason why Carter*had not brought to him the gold certificates as he had agreed to do. Carter was then absent from the office, and his partner Mellen told Smith that Carter was out about the matter at that time, and, as soon as he brought the certificates, Mellen would take them to Smith. Immediately after this, Mellen, Ward & Co. sent to Smith their draft on New York for $125,000, but did not send with it any gold certificates, nor a receipt of the Adams Express Company. After waiting, perhaps 15 minutes, Smith went again to know why the certificates or the receipt had not been brought to him, and then, for the first time, learned that Carter was at the sub-treasury, and in trouble.
After all the foregoing transactions occurred, the plaintiff voluntarily paid to the Eagle National Bank the draft for $125,000 which Carter obtained from Smith; and the three drafts of that bank were duly paid on presentation in New York. The aforesaid draft of Mellen, Ward & Co. for $125,000 was never paid, nor was it presented to the drawee for payment. At the time Smith let Carter have the draft for $125,000, Smith was, as cashier, under bond to the plaintiff, with sureties, in the sum of $30,000, and after the plaintiff paid the draft it made demand upon him and his sureties; and the