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HOFFMAN & CO. V. BANK OF MILWAUKEE, 79 U. S. 181 (1870)

U.S. Supreme Court

Hoffman & Co. v. Bank of Milwaukee, 79 U.S. 12 Wall. 181 181 (1870)

Hoffman & Co. v. Bank of Milwaukee

79 U.S. (12 Wall.) 181




A consignor who had been in the habit of drawing bills of exchange on his consignee with bills of lading attached to the drafts drawn (it being part of the agreement between the parties that such bills should always attend the drafts) drew bills on him with forged bills of lading attached to the drafts, and had the drafts with the forged bills of lading so attached discounted in the ordinary course of business by a bank ignorant of the fraud. The consignee, not knowing of the forgery of the bills of lading, paid the drafts. Held that there was no recourse by the consignee against the bank.

Chapin & Miles, a forwarding and commission firm in Milwaukee, were engaged in moving produce to Hoffman & Co., of Philadelphia, for sale there. The course of their business was thus: They first shipped the produce, obtaining a bill of lading therefor, to which they attached a draft drawn by them on their consignee for about the value of the grain and then negotiated the draft with bill of lading attached to some bank in Milwaukee and obtained the money.

Page 79 U. S. 182

It was understood that the draft was drawn upon the credit of the property called for by the bill of lading, and would be paid by the consignee upon receipt of the bill of lading, and -- with perhaps a single exception where the bills of lading, not being obtained during bank hours, was sent otherwise than with the draft -- the drafts were accompanied by such bills. The Philadelphia firm, however, rarely knew what flour belonged to any particular bill of lading, not being obliged by the railroad clerks at Philadelphia, where they were known, to exhibit any bill of lading in order to get the flour, and their custom being, on getting notice from the railroad office that flour had arrived for them, to pay the charges, give receipts and send their drayman for it and bring it away. It was the practice of the Milwaukee firm to advise their Philadelphia correspondents by letter of shipments made and drafts drawn, which advisements were acknowledged with a promise "to honor the drafts." When flour was "slow" in going forward, they corresponded with the Milwaukee house about it, but did not on that account refuse acceptance or payment of any bill.

Having been thus dealing for about sixteen months, Chapin & Miles drew three drafts on Hoffman & Co. in the ordinary way, and, attaching to them bills of lading which they had forged, negotiated, in the ordinary course of business, the drafts, with the forged bills of lading attached, to the City Bank of Milwaukee, getting the money for them. The bank knew nothing of the forgery of the bills of lading. The ordinary correspondence between the two houses took place. That in regard to one draft will exhibit its character.

"MILWAUKEE, February 26, 1869"


"DEAR SIRS: We ship to you today 200 bbls. 'Prairie Flour,' and draw at s't for $1,100, which please honor. Will draw for $5 only when we can, but must crowd $5 l/2 part of the time."

"Yours truly,"


Page 79 U. S. 183

"PHILADELPHIA, March 2, 1869"


"GENTLEMEN: Yours 26th ult. here. Your draft $1,100, will be paid, but we think you should try to keep them down to $5 per barrel. We advise sale of 100 Prairie at $7 and 54 at $7.25."

"Yours, respectfully,"


No flour was forwarded. The Milwaukee bank forwarded the drafts, however, with the forged bills of lading attached, to their correspondent, the Park Bank in New York, for collection. The Park Bank forwarded the same to its correspondent, the Commonwealth Bank of Philadelphia, for the same purpose, and the latter bank presented the draft and bill of lading to the drawees, Hoffman & Co., who, knowing the drafts to be genuine and not supposing that the bills of lading were otherwise, paid the drafts to the Philadelphia bank, which remitted the money back to the Park Bank to the credit of the Bank of Milwaukee.

No flour coming forward, Hoffman & Co. discovered that the bills of lading were forged, and Miles & Chapin being insolvent, they sued the Bank of Milwaukee to recover the amount paid, as above stated.

The declaration in the case contained the common counts in assumpsit, with a notice attached to the defendant

"that the action was brought to recover $3,100, money paid by the plaintiff under mistake of fact upon drafts and bills of lading (of which copies were annexed), the mistake being that the plaintiffs paid the money upon the belief that the said bills of lading were genuine instruments, whereas in fact they were forged, the amount of money paid being the amount called for by the drafts, which was paid upon the credit and inducement of the bills of lading."

Neither the name of the defendant, the Milwaukee bank, nor of any of its officers or agents, appeared in or upon the bills of lading in question, and lead it not been for extrinsic evidence, it could not have been told from those bills that the bank had had anything to do with them. Nor had the bank

Page 79 U. S. 184

lead any dealings or correspondence of any kind with the Philadelphia house, relative to the shipments of flour by Chapin & Miles, or relative to the drafts drawn by them.

On this case, the court below directed the jury to find for the hank, defendant in the case, and the plaintiff's brought the case here.

Page 79 U. S. 186

MR. JUSTICE CLIFFORD delivered the opinion of the Court.

Acceptors of a bill of exchange, by file act of acceptance, admit the genuineness of file signatures of the drawers, and the competency of the drawers to assume that responsibility. Such an act imports all engagement, on the part of the acceptor, to the payee or other lawful holder of the bill, to pay the same, if duly presented, when it becomes due, according to the tenor of the acceptance. He engages to pay the holder, whether payee or endorsee, the full amount of the bill at maturity, and if he does not, the holder has a right of action against him, and he may also have one against the drawer. Drawers of bills of exchange, however, are not

Page 79 U. S. 187

liable to the holder, under such circumstances, until it appears that the bill was duly presented, and that the acceptor refused or neglected to pay the same according to the tenor of the instrument, as their liability is contingent and subject to those conditions precedent.

Three bills of exchange, as exhibited in the record, were drawn by Chapin, Miles & Co., payable to the order of the defendants, and the record shows that they, the defendants, received and discounted the three bills at the request of the drawers. Attached to each bill of exchange was a bill of lading for two hundred barrels of flour, shipped, as therein represented, by the drawers of the bills of exchange, and consigned to the plaintiff's, and the record also shows that the drawers in each case sent a letter of advice to the consignees apprising them of the shipment, and that they would draw on them as such consignees for the respective amounts specified in the several bills of exchange. Prompt reply in each case was communicated by the plaintiffs acknowledging the receipt of the letter of advice sent by the shippers and promising to honor the bills of exchange as therein requested. Evidence was also introduced by the plaintiffs showing that the defendants endorsed the bills of exchange and forwarded the same, with the bills of lading attached, to the National Park Bank of the City of New York, their regular correspondent; that the same were subsequently endorsed by the latter bank, and forwarded to the Commonwealth Bank of Philadelphia for collection; that the Commonwealth Bank presented the bills of exchange, with the bills of lading attached, to the plaintiffs, as the acceptors, and that they paid the respective amounts as they had previously promised to do, and that the Commonwealth Bank remitted the proceeds in each case to the National Park Bank, where the respective amounts were credited to the defendants. Proof was also introduced by the plaintiffs showing that each of the bills of lading was a forgery, and that the plaintiffs, before the commencement of the suit, tendered the same and the bills of exchange to the defendants,

Page 79 U. S. 188

and that they demanded of the defendants, at the same time, the respective amounts so paid by them to the Commonwealth Bank. Payment as demanded being refused, the plaintiff brought an action of assumpsit against the defendants for money had and received, claiming to recover back the several amounts so paid as money paid by mistake, but the verdict and judgment were for the defendants, and the plaintiffs sued out a writ of error, and removed the cause into this Court. Testimony was also introduced by the defendants tending to show that the shippers were millers; that they made an arrangement with the plaintiffs to ship flour to them at Philadelphia for sale in that market, the plaintiffs agreeing that they, the shippers, might draw on them for advances on the flour, to be reimbursed out of the proceeds of the sales; that for more than a year, they had been in the habit of shipping flour to the plaintiffs under that arrangement and of negotiating drafts on the plaintiffs to the banks in that city, accompanied by bills of lading in form like those given in evidence in this case; that the drafts, with the bills of lading attached, were sent forward by the banks, where the same were discounted, and that the salve were paid by the plaintiffs; that the drawers of the drafts in every case notified the plaintiffs of the same, and that the plaintiffs, as in this case, answered the letter of advice and promised to pay the amount. They also proved that the drawers of the drafts in this case informed their cashier that the same would always be drawn upon property, and that the bills of lading would accompany the drafts, and that they bad no knowledge or intimation that the bills of lading were not genuine. Instructions were requested by the plaintiff's, that if the jury found that the respective bills of lading were not genuine, that they were entitled to recover the several amounts paid to the Commonwealth Bank, with interest; but the court refused to give the instruction as prayed, and instructed the jury that if they found the facts as shown by the defendants, the plaintiffs could not recover in the case, even though they should find that the several bills of lading were a forgery.

Page 79 U. S. 189

Money paid under a mistake of facts, it is said, may be recovered back as having been paid without consideration, but the decisive answer to that suggestion, as applied to the case before the court, is that money paid, as in this case, by the acceptor of a bill of exchange to the payee of the same, or to a subsequent endorsee, in discharge of his legal obligation as such, is not a payment by mistake nor without consideration, unless it be shown that the instrument was fraudulent in its inception, or that the consideration was illegal, or that the facts and circumstances which impeach the transaction, as between the acceptor and the drawer, were known to the payee or subsequent endorsee at the time he became the holder of the instrument. [Footnote 1]

Such an instrument, as between the payee and the acceptor, imports a sufficient consideration, and in a suit by the former against the latter the defense of prior equities, as between the acceptor and the drawer, is not open unless it be shown that the payee, at the time he became the holder of the instrument, had knowledge of those facts and circumstances.

Attempt is made in argument to show that the plaintiff's accepted the bills of exchange upon the faith and security of the bills of lading attached to the same at the time the bills of exchange were discounted by the defendants. Suppose it was so, which is not satisfactorily proved, still it is not perceived that the concession, if made, would benefit the plaintiffs, as the bills of exchange are in the usual form and contain no reference whatever to the bills of lading, and it is not pretended that the defendants bad any knowledge or intimation that the bills of lading were not genuine, nor is it pretended that they made any representation upon the subject to induce the plaintiff's to contract any such liability. They received the bills of exchange in the usual course of their business as a bank of discount and paid the full amount of the net proceeds of the same to the drawers, and it is not

Page 79 U. S. 190

even suggested that any act of the defendants, except the endorsement of the bills of exchange in the usual course of their business, operated to the prejudice of the plaintiff's or prevented them from making an earlier discovery of the true character of the transaction. On the contrary, it distinctly appears that the drawers of the bills of exchange were the regular correspondents of the plaintiffs, and that they became the acceptors of the bills of exchange at the request of the drawers of the same and upon their representations that the flour mentioned in the bills of lading had been shipped to their firm for sale under the arrangement before described.

Beyond doubt, the bills of lading gave some credit to the bills of exchange beyond what was created by the pecuniary standing of the parties to the same, but it is clear that they are not a part of those instruments, nor are they referred to either in the body of the bills or in the acceptance, and they cannot be regarded in any more favorable light for the plaintiff's than as collateral security accompanying the bills of exchange.

Sent forward, as the bills of lading were, with the bills of exchange, it is beyond question that the property in the same passed to the acceptors when they paid the several amounts therein specified, as the lien, if any, in favor of the defendants was then displaced and the plaintiffs became entitled to the instruments as the muniments of title to the flour shipped to them for sale and as security for the money which they had advanced under the arrangement between them and the drawers of the bills of exchange. Proof, therefore, that the bills of lading were forgeries could not operate to discharge the liability of the plaintiffs, as acceptors, to pay the amounts to the payees or their endorsees, as the payees were innocent holders, having paid value for the same in the usual course of business. [Footnote 2]

Different rules apply between the immediate parties to a bill of exchange -- as between the drawer and the acceptor, or between the payee and the drawer -- as the only consideration

Page 79 U. S. 191

as between those parties is that which moves from the plaintiff to the defendant, and the rule is, if that consideration fails, proof of that fact is a good defense to the action. But the rule is otherwise between the remote parties to the bill, as, for example, between the payee and the acceptor, or between the endorsee and the acceptor, as two distinct considerations come in question in every such case where the payee or endorsee became the holder of the bill before it was overdue and without any knowledge of the facts and circumstances which impeach the title as between the immediate parties to the instrument. Those two considerations are as follows: first, that which the defendant received for his liability, and, secondly, that which the plaintiff gave for his title, and the rule is well settled that the action between the remote parties to the bill will not be defeated unless there be an absence or failure of both these considerations. [Footnote 3]

Unless both considerations fail in a suit by the payee against the acceptor, it is clear that the action may be maintained, and many decided cases affirm the rule, where the suit is in the name of a remote endorsee against the acceptor, that if any intermediate holder between the defendant and the plaintiff gave value for the bill, such an intervening consideration will sustain the title of the plaintiff. [Footnote 4]

Where it was arranged between a drawer and his correspondent that the latter would accept his bills in consideration of produce to be shipped or transported to the acceptor for sale, the Supreme Court of Pennsylvania held, [Footnote 5] that the acceptor was bound to the payee by his general acceptance of a bill, although it turned out that the bill of lading forwarded at the same time with the bill of exchange was fraudulent, it not being shown that the payee of the bill

Page 79 U. S. 192

was privy to the fraud. Evidence was introduced in that case showing that the payee knew what the terms of the arrangement between the drawer and the payee were, but the court held that mere knowledge of that fact was not sufficient to constitute a defense, as the payee was not a party to the arrangement and was not in any respect a surety for the good faith and fair dealing of the shipper.

Failure of consideration, as between the drawer and acceptor of a bill of exchange, is no defense to an action brought by the payee against the acceptor, if the acceptance was unconditional in its terms and it appears that the plaintiff paid value for the bill, even though the acceptor was defrauded by the drawer, unless it be shown that the payee had knowledge of the fraudulent acts of the drawer before he paid such value and became the holder of the instrument. [Footnote 6]

Testimony to show that the payees were not bona fide holders of the bills would be admissible in a suit by them against the acceptors, and would constitute, it believed, a good defense, but the evidence in this case does not show that they did anything that is not entirely sanctioned by commercial usage. They discounted these bills and they had a right to present there for acceptance, and having obtained the acceptance, they have an undoubted right to apply the proceeds collected from the acceptors to their own indemnity. [Footnote 7]

Forgery of the bills of lading would be a good defense to an action on the bills if the defendants in this case had been the drawers, but they were payees and holders for value in the regular course of business, and the case last referred to, which was decided in the Exchequer Chamber, shows that such an acceptance binds the acceptor conclusively as between them and every bona fide holder for value.

Very many cases decide that the drawee of a bill of exchange is bound to know the handwriting of his correspondent,

Page 79 U. S. 193

the drawer, and that if he accepts or pays a bill in the hands of a bona fide holder for value, he is concluded by the act although the bill turns out to be a forgery. If he has accepted, he must pay, and if he has paid, he cannot recover the money back, as the money in such a case is paid in pursuance of a legal obligation as understood in the commercial law. [Footnote 8]

Difficulty sometimes arises in determining whether the plaintiff, in an action on a bill of exchange, is the immediate promisee of the defendant, or whether he is to he regarded as a remote party, but it is settled law that the payee, where he discounts the bill at the request of the drawer, is regarded as a stranger to the acceptor in respect to the consideration for the acceptance; consequently, if the acceptance is absolute in its terms and the bill is received in good faith and for value, it is no answer to an action by him that the defendant received no consideration for his acceptance or that the consideration therefor has failed; and it is immaterial in that behalf whether the bill was accepted while in the hands of the drawer and at his request, or whether it had passed into the hands of the payee before acceptance and was accepted at his request. [Footnote 9]

Certain other defenses, such as that the payments were voluntarily made, and that the title to the bills at the time the payments were made was in the National Park Bank, were also set up by the defendants, but the court does not find it necessary to examine those matters, as they are of the opinion that the payments, if made to the payees of the bills, as contended by the plaintiffs, were made in pursuance of a legal obligation and that the money cannot be recovered back.

Judgment affirmed.

[Footnote 1]

Fitch v. Jones, 5 Ellis & Blackburn 238; Arbouin v. Anderson, 1 Adolphus & Ellis N.S. 498; Smith v. Braine, 16 id. N.S. 244; Hall v. Featherstone, 3 Hurlstone & Norman 287.

[Footnote 2]

Leather v. Simpson, Law Reports, 11 Equity 398.

[Footnote 3]

Robinson v. Reynolds, 2 Q.B. 202; Same v. Same, in error, ib., 210; Byles on Bills (5th Am. Ed.) 124; Thiedemann v. Goldschmidt, 1 De Gex, Fisher & Jones, Ch.App. 10.

[Footnote 4]

Hunter v. Wilson, 4 Exchequer 489; Boyd v. McCann, 10 Md. 118; Howell v. Crane, 12 La.Ann. 126; Watson v. Flanagan, 14 Tex. 354.

[Footnote 5]

Craig v. Sibbett, 15 Pa. 240.

[Footnote 6]

<|15 Pet. 393|>United States v. Bank of Metropolis, 15 Pet. 393.

[Footnote 7]

Thiedemann v. Goldschmidt, 1 De Gex, Fisher & Jones, Ch.App. 10; Robinson v. Reynolds, 2 Q.B. 211.

[Footnote 8]

Goddard v. Merchants' Bank, 4 Comstock 149; Bank of Commerce v. Union Bank, 3 id. 234; <|10 Wheat. 348|>Bank of the United States v. Bank of Georgia, 10 Wheat. 348; Price v. Neal, 3 Burrow 1355.

[Footnote 9]

Parsons on Bills 179; Munroe v. Bordier, 8 C.B. 862.

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