BANK V. KENNEDY, 84 U. S. 19 (1872)

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U.S. Supreme Court

Bank v. Kennedy, 84 U.S. 17 Wall. 19 19 (1872)

Bank v. Kennedy

84 U.S. (17 Wall.) 19


1. A receiver of a national bank, appointed by the Comptroller of the Currency under the 50th section of the National Banking Act, may sue for demands due the bank in his own name as receiver, or in the name of the bank.

2. A receiver, in order to sue for an ordinary debt due the bank, is not obliged to get an order of the Comptroller of the Currency. It is a part of his official duty to collect the assets.

3. The case of Kennedy v. Gibson, 8 Wall. 506, distinguished from this case; as having been a suit against the stockholders of the bank, which required the direction of the Comptroller.

4. Conversations occurring during the negotiation of a loan, or other transaction, as well as the instruments given or received, being part of the res gesta, are competent evidence to show the nature of the transaction, and the parties for whose benefit it was made, where that fact is material. They are not adduced for the purpose of proving facts stated or affirmed in the conversations, but to prove the conversations themselves as facts, and are not hearsay, but original evidence.

5. Where the cashier of a bank effects a loan, and it becomes material to ascertain whether it was made for his own account or for the use of the bank, evidence of the negotiation and circumstances may be given for that purpose, whatever may be the form of the securities given or received, when the latter are introduced only collaterally in the cause.

6. When papers or documents are introduced collaterally in the trial of a cause, the purpose and object for which they were made, and the reason why they were made in a particular form, may be explained by parol evidence.

Page 84 U. S. 20

7. The purpose or quality o� an act may be stated by a witness who was present and cognizant of the whole transaction, as whether the delivery of money by one man to another was by way of payment or otherwise.

8. What one party to a contract understands or believes is not to govern its construction unless such understanding or belief was induced by the conduct or declarations of the other party.

9. Evidence or statements of fact not contained in the bill of exceptions, nor made a part thereof, though appended thereto, will not be regarded by the court.

Kennedy, receiver of the Merchants' National Bank, brought suit in the court below against the National Bank of the Metropolis, to recover the balance alleged to be due on a check for $50,000, dated May 1, 1866, drawn by one Robinson on the said Bank of the Metropolis, in favor of the said Merchants' Bank, and duly presented for payment. On presentation of the check, the Bank of the Metropolis admitted its obligation to pay it, but as part payment thereof, delivered to the messenger of the Merchants' Bank a note of C. A. Sherman, cashier of that bank, for $20,000, dated February 27, 1866. The Merchants' Bank declined to receive this note as payment, and sent it back demanding the cash. But the Bank of the Metropolis refused to take back the note, insisting that although it was signed by Sherman, individually, it was given for account of the Merchants' Bank, and for a loan made to it. The principal controversy in the case arose upon the question whether the note was given by Sherman on his own account or on account of the Merchants' Bank.

Certain preliminary questions, however, were raised with reference to the authority of the receiver to bring the action.

Verdict and judgment, under the rulings as to evidence, and under the charge, were given for the plaintiff; and the defendant, the Bank of the Metropolis, brought the case here. This Court disposed of the different points raised, considering them in the order of the several assignments of error.

Page 84 U. S. 21

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