Opinion of the Court. his work, concealed letters and communications, including the above, and they did not come to the actual knowledge of the officers of the bank until after April, 1889, when the letter of June 1, 1888, and the account current mailed July 2, 1888, were found among Schor's papers, he having committed suicide upon the discovery of his irregularities. The letter of June 22, 1888, was not found. The trial judge properly charged the jury that if the letters and accounts were received by Schor they were, in law, received by the bank, and the jury found that they were so received. The plaintiff's action is based solely upon the alleged neglect and failure of the defendant to discharge its duties touching the collection of said certificate of deposit. The verdict and judgment of the court below were for nominal damages for the plaintiff, and the case is before this court upon the plaintiff's exceptions. Mr. Alex. P. Humphrey, Mr. George M. Davie, Mr. Thomas E. Garvin, Mr. George A. Cunningham and Mr. Thomas E. Garvin, Jr., for plaintiff in error. Mr. Walter Evans, (Messrs. Barnett, Miller & Barnett were also on the brief,) for defendant in error. SAGE, District Judge, after stating the facts as above, delivered the opinion of the court. The assignments of error set forth in the record are embodied in the propositions relied upon by counsel for the plaintiff in error in their brief. Their first proposition is that the transmission by the defendant in error of the certificate of deposit to Pool & Co., the makers, for collection was negligence, which made the defendant in error responsible for any loss resulting. They cite German National Bank of Denver v. Burns, 12 Colorado, 539, The Drovers' National Bank v. The AngloAmerican Packing and Provision Company, 117 Illinois, 100, and Merchants' National Bank of Philadelphia v. Goodman, 109 Penn. St. 422, 424. The court below took this view of the Opinion of the Court. law, and approved the cases above cited in overruling a general demurrer to the answer. See also Farwell v. Curtis, 7 Bissell, 160, 162, Indig v. The National City Bank of Brooklyn, 80 N. Y. 100, and Briggs v. The Central National Bank of the City of New York, 89 N. Y. 182. The jury were charged that the defendant violated its duty as an agent by sending the certificate to the makers of it for collection, and that it was liable for the damage resulting from that violation of duty. So far, therefore, the plaintiff in error has no ground for complaint. The court went on to state to the jury that the real question in the case was whether the damage claimed was the result of the negligence complained of. Calling attention to the letters of June 1 and June 22, 1888, and to the charging back of the amount of the certificate in the July account, the court referred to the fact that there was no conflict of evidence, and instructed the jury that those letters and the charging back amounted to a renunciation of the defendant's agency, so far as the defendant could renounce it. But the court added that the defendant could not by its renunciation put an end to the agency and relieve itself from liability, as the facts then were, without the consent, express or implied, of the plaintiff, and that such consent would be implied from the silence of the plaintiff after being informed of the renunciation. The court added that if the plaintiff made no objection to the renunciation, the defendant was not liable for damage resulting from events subsequent, and not from the sending of the certificate to Pool & Co. for collection. Counsel for plaintiff in error undertake to escape this conclusion by citing Leather Manufacturers' Bank v. Morgan, 117 U. S. 96, in support of their contention that the receipt of the letters and statements of account by Schor was not a receipt by the plaintiff, nor was his knowledge of their contents to be imputed to the plaintiff. The citation is not a fortunate one for them. In that case the clerk of Cooper, a depositor with the bank, had raised various checks, the signatures to which were genuine. charged to Cooper's account. Those checks were paid and Cooper sent in his pass book Opinion of the Court. from time to time between the 1st of October, 1880, and the 20th of January, 1881, and it was written up and returned to him with the paid checks, including those that had been raised. The balances were struck as determined by the genuine and the raised checks. It appeared from the evidence that Cooper was in the habit of examining his check book from time to time, but in a casual way, and he did not discover the forgeries until March 1 or 2, 1881. The Supreme Court held that he was bound personally, or by an authorized agent, and with due diligence, to examine the pass book and vouchers, and to report to the bank without unreasonable delay any errors that might have been discovered in them, and that if he failed to do so, and the bank was thereby misled to its prejudice, he could not afterwards dispute the correctness of the balance shown by the pass book. Mr. Justice Harlan, in announcing the opinion of the court, said that the sending of the pass book to be written up and returned with the vouchers was, in effect, a demand to know what the bank claimed to be the state of his account, and the return of the book with the vouchers was the answer to that demand, and that it imported a request by the bank that he would, in proper time, examine the account so rendered, and either sanction or repudiate it. He also said that Cooper's failure to make the examination or to have it made within a reasonable time was inconsistent with the object for which he obtained and used a pass book. Citing Perkins v. Hart, 11 Wheat. 237, 256, and Wiggins v. Burkham, 10 Wall. 129, 132, he added that where a party to a stated account neglects to examine it or to have it examined within a reasonable time after receiving it, by reason of which negligence the other party, relying upon the account as having been acquiesced in or approved, has failed to take steps for his protection which he could and would have taken had such notice been given, the former is estopped from questioning its conclusiveness. To apply that case to this:- The defendant, in its letter of June 1, 1888, notified the plaintiff that it had sent the certificate to Pool & Co., the makers, for collection, and that it had had no returns and could get no answer to its inquiries. It Opinion of the Court. then asked the plaintiff to see the indorser and have him investigate, and either obtain a duplicate of the certificate or have Pool & Co. remit. There was no answer to this letter. The defendant waited until June 22. Still no answer. The defendant mailed to the plaintiff its letter of that date notifying it that it had charged back to its account the $2700 credit for the certificate, that the defendant had written. repeatedly for the item but could get no returns, and had written the plaintiff several weeks before for a duplicate, but had not received it, closing with the expression of the hope that the plaintiff could settle the matter without further trouble. No answer to that letter. Then, on July 2, the account current for June, showing on its face the charging back of the $2700 item, was mailed by the defendant to the plaintiff, and thereafter, regularly, monthly accounts for nine months, each with that item omitted, were mailed. All this time no word from the plaintiff. Finally, on April 24, 1889, came the plaintiff's objection to the account. In the meantime the makers of the certificate had become insolvent and the indorser had been released. Here was no merely implied or imported request that the plaintiff should examine the account sent. Attention was directed specifically to the item charging back the credit for the certificate. Had the plaintiff complied with the defendant's request contained in the letter of June 1, 1888, by furnishing a copy of the certificate, the collection could have been made, if not from the makers, at least from the indorser. Had the plaintiff then declined the request, and notified the defendant that it would be held to the performance of its agency, and to the full measure of responsibility for any loss resulting from its default, it could have enforced the collection without regaining possession of the certificate, which was only a piece of evidence, and protected itself against loss. As it was, when the plaintiff's objection was made, the conditions were so changed that collection could not be made, and the loss must fall upon the plaintiff or the defendant. The conclusion is irresistible that the plaintiff, by its silence, acquiesced in the defendant's renunciation of its agency, and caused the defendant to fail to take such steps as it might Opinion of the Court. otherwise have taken for its protection. The facts of this case are quite as strong to support an estoppel as those shown in Leather Manufacturers' Bank v. Morgan, supra. However, counsel for the plaintiff in error did not cite that case for the application above made, but to call attention to the fact that the Supreme Court decided, first, that if the bank had been guilty of negligence it would have been liable notwithstanding the depositor's failure to examine the pass book and vouchers; and, second, that as the depositor's clerk had no power to bind him by raising the checks, he had no power to charge him with the imputed knowledge of the fact that they had been raised. The court did hold that if the officers of the bank could by proper care and skill have detected the forgeries before paying the raised checks, the bank would be the loser, even if the depositor made no examination of his account; certainly, because in that state of facts the negli gence of the bank's officers would have been the proximate cause of the loss. But how does that lay the foundation for maintaining that the court below erred in this case? The jury were instructed that the plaintiff had the right to decline the defendant's renunciation of its agency, and to hold the defendant responsible, but that if they found that the bank received the letter and remained silent, acquiescence in the renunciation was to be inferred, and that the defendant would not be responsible for any damage resulting from subsequent events not directly caused by the original negligence of sending the certificate to the makers for collection. Thus we see that the court expressly charged the jury that the defendant was not in any event to be released from responsibility for any loss resulting from its negligence, but only from the consequences of its failure to act after the plaintiff's acceptance if found from the evidence of the renunciation of the agency. These instructions are in perfect harmony with the decision in Leather Manufacturers' Bank v. Morgan, supra. As to the second point for which counsel cited that case, it has no application here. There the raising of the checks was not only entirely out of the line of the clerk's authority, but |