621 622 623 I. E. Waters, for Deft., Direct. not brought to the defendant bank to cover these two drafts; upon the further ground that this is an action to trace moneys and follow funds belonging to this plaintiff and upon that theory the letters are irrelevant and immaterial. Objection overruled and letters and telegrams received in evidence and marked plaintiff's exhibits M, N, O, P, Q, R, S, T, T 1, T 2, T 3, T 4 and U. Defendant excepts. Plaintiff offers in evidence three letters of November 2nd, 1908. Defendant objects upon the same grounds and upon the further ground that each letter was to a stranger to this transaction and on the further ground that this transaction having come to an end on October 31st, the letters are irrelevant. IRVING E. WATERS being duly sworn on be624 half of defendant testified as follows: Direct Examination by Mr. Kenefick: I reside in the City of Buffalo and was President of the Union Stock Yards Bank during the year 1908 and up until July 1st, 1910. I was connected with it from its inception on November 10th, 1904, being Vice President and Cashier until August, 1906. On Friday, October 23rd, 1908, I was in New York City and saw the Carnegie Trust Company with reference to the Pfeiffer I. E. Waters, for Deft., Direct. 625 627 checks. Just prior to my departure for New York we had a wire of advice that a draft of Pfeiffer & Sons drawn on Joseph C. Pfeiffer at Fort Wayne had been dishonored and as I was just leaving the office for New York I instructed Mr. Theobald to get in communication with the First National Bank at Fort Wayne regarding the mat- 626 ter. Previous to that we had ascertained that Stephen Pfeiffer was out of the City and so I instructed Mr. Theobald to get in communication with the Fort Wayne bank and I would confer with him over the long distance 'phone from New York with reference to the protest of this draft. I went on to New York and after a conversation with Mr. Theobald on the 23rd, went to the Carnegie Trust Company and told them not to honor any checks of Pfeiffer & Sons drawn on our account. I had no talk with Pfeiffer from New York. I then talked with Mr. Theobald over the telephone and advised him of what I had done and returned to Buffalo the next day, Saturday, arrived Sunday morning. I saw Stephen Pfeiffer Monday morning at the bank and had a general talk with him in regard to their business and he said that the stop payment order of their checks would be very injurious to their trade. I told him that if he wished to have the checks then outstanding in circulation honored he would have to protect the bank by satisfactory collateral. He then agreed that they would give us a mortgage for $14,000 on the house on North street which was then unmortgaged. His mother and sister came out with Stephen in the afternoon to the bank and I asked the mother if she was con 628 629 I. E. Waters, for Deft., Direct. versant with the affairs of the business and the amount they owed and she said that she was in a general way and that she had great confidence in the son here in Buffalo and the one in Fort Wayne. She consented to execute the mortgage, she being the owner of the property, and on the 630 strength of this I told them that if they would do that I would raise or recall the stop payment order and in fact on her promise I wrote to New York recalling the stop payment. 631 Letter offered and received in evidence and marked defendant's exhibit b On Monday or on Tuesday morning Mr. Pfeiffer came to the bank and stated that he had left a deed of the property with our attorney but he brought the search to me. I told him that the search should have followed the deed and in the meantime I got into communication with our attorney and he told me he was drawing the mortgage. I told Mr. Pfeiffer to take the search back to our attorney so he left the bank with the promise that he would do so, but instead he went back to 632 the house. In the meantime our attorney had drawn the mortgage and sent a notary to get their signatures and get their acknowledgment but Mr. Pfeiffer prevailed upon his mother not to sign it. This was either on Tuesday or Wednesday. In answer to our letter to the Carnegie Trust Company of the 26th, we received this letter of the 28th, from the Trust Company. Letter offered and received in evidence marked defendant's exhibit On Thursday, the 29th, I had a telephone con I. E. Waters, for Deft., Cross. versation with an officer of the Carnegie Trust Company and also wrote on that day. It was on that day also that we concluded to re-issue the stop payment order as they had failed to execute the mortgage and deliver the collateral to us. d Letter offered and received in evidence and marked defendant's exhibit This letter was confirming a conversation over the telephone of the same day and we also sent a further explanatory letter on the 29th, to the Carnegie Trust Company. Letter offered and received in evidence and marked defendant's exhibit a In reply we received this letter dated October 3t0h, from the Carnegie Trust Company. Letter offered and received in evidence and marked defendant's exhibit CROSS EXAMINATION: The letter of the 26th, to the Carnegie Trust Company referred to a list on which payment had already been stopped by me personally and confirmed by the bank's officers here and the other contains a list of the amount giving the commencing and closing numbers inclusive of a new lot of drafts which had been issued and were to guarantee the payment pending the delivery of the $14,000 mortgage. The list of drafts to which I refer in the letter where I say that we want the stop order kept in force is as follows: 5548 $579.55 5555 $1,063,93 5552 $7508.00 5554 708.90 5553 1,019.78 5556 655.55 5560 5557 806.80 390.46 5562 1150.90 5561 864.28 633 634 635 636 638 The mortgage which the Pfeiffers promised to give was to be given as general collateral to secure all of their debts at the bank. There were two drafts outstanding at the time which had not been paid one for $9200 and one for $8700.00. The firm had been drawing drafts on Joseph C. Pfeiffer for quite a few months previous to that. I learned that Joseph C. Pfeiffer was a man of no means a few weeks or months prior to the drawing and dishonoring of these drafts. I knew it at least in September. The matter had been a subject of correspondence between our bank and the First National Bank of Fort Wayne. There being in September three drafts for approximately $7500, $9000 and $8000.00 drawn upon J. C. Pfeiffer at Fort Wayne. This practice had continued for some time but I couldn't say whether the Pfeiffer firm was issuing checks to Joseph C. Pfeiffer at Fort Wayne for the purpose of mak640 ing these drafts good. I knew that pending the 639 application they had for a loan on their property at Fort Wayne the Pfeiffer firm were sending checks to the bank at Fort Wayne for the purpose of making these drafts good, and it finally came to a point in September where the Fort Wayne bank refused to pay them. We then wrote a letter to the bank and after first telegraphing them asking it to pay them. I knew J. C. Pfeiffer was not a shipper of livestock but thought that he was engaged in the raising of livestock and in farming. |