Bostwick v. Bank of Mutual Redemption , 25 How. Pr. 314 ( 1862 )

By the court, Ingeaham, P. Justice.

The evidence in this case, we think, showed facts sufficient as to the plaintiffs’ title, to let the case go to the jury.

It was proven that the Park Bank agreed with the plaintiffs to take their packages without being responsible for the count, and pass them unopened to the defendant, and that this package was sent under that arrangement.

It was proved, also, on cross-examination of another witness, that the Park Bank charged a rate of discount on hills deposited as these were, and that plaintiffs were allowed to draw on the amount deposited for transmission, and the deposit passed to the plaintiffs’ credit by the Park Bank, and if the package was short the plaintiffs were to make it up.

It was also proven that before the commencement of this action, the Park Bank returned to the plaintiffs the package as received by them, and that the plaintiffs paid the bank the deficiency. These facts were sufficient to submit to the jury the question whether the Park Bank had not, by returning the package as soon as the mistake was discovered, refused to accept the same under the contract, and if so, whether the title was not still in the plaintiffs.

It could hardly be said to be erroneous if the jury had been so instructed as matter of law. The nonsuit was improperly granted, and the judgment must be reversed.

Judgment reversed and a new trial ordered, costs to abide the event.