Francis v. People's National Bank

1 Ohio N.P. 281

• Court: Licking County Court of Common Pleas
• Decided: January 15, 1895
• Status: Published

Opinion

Gill, J.

(The court reads the pleadings; Petition, Amended Answer and Reply.)

These are the issues, as made by the pleadings, which you are to consider.

It is admitted by the pleadings and by the parties on the trial that the note mentioned in the pleadings was executed by the plaintiff as of the date and for the amount therein stated. That the same was paid by the defendant at its bank to the holder thereof on the 16th day of June, 1886. That the plaintiff was a general depositor in the bank, and had sufficient money in the bank on deposit at that time to pay the amount of the note.

All other allegations of the petition, are denied by the answer, and the allegations of the answer are denied by the reply.

The plaintiff alleges and claims that the defendant, without authority from him or authority of law, converted to its own use the sum of one hundred and ten dollars, deposited by him in the defendant’s bank, together with interest thereon from the first day of June, 1886, which it refuses to pay.

The defendant alleges in its answer, that on the 16th day of June, 1886,* it paid for plaintiff a note of his, owned by Henry Burner, payable at it# bank, in the sum of one hundred and ten dollars, out of the funds belonging to plaintiff as general depositor with said bank, and charged the same to plaintiff’s account as a general depositor.

That on the 24th of July, 1886, plaintiff and defendant had an accounting and settlement of all accounts between them, and defendant returned to the plaintiff his checks and said note paid by defendant, charged in said account, and plaintiff ratified the payment of said note out of said funds as such general depositor, and never made any objection to said payment to the bank until the commencement of this action.

The burden of proof is upon the plaintiff. To entitle him to recover, he must satisfy you by a preponderance of the evidence of the truth of his claim.

The defendant admits it paid the said, note out of tb,e deposits of the plaintiff in its bank, and claims it was authorized to do so, because the said note was made payable at People’s National Bank of Newark, Ohio.

On this branch of the case, the burden of proof is upon the defendant, and it must satisfy you by a preponderance of the evidence of the truth of its claim.

The court instructs you that the note mentioned in the pleadings does not state upon its face that the same was payable at the People’s National Bank of Newark, Ohio, but does state that the same was payable at the ■“ People’s N Bank.”

If the defendant satisfies you by a preponderance of the evidence that •the said note, executed by the plaintiff and presented to and paid by the •defendant, was, in fact, intended by the maker when executed, and known and understood by the bank, to be payable at the-People’s National Bank of Newark, Ohio, the court instructs you the defendant was authorized, and had the right to pay the note when so presented to it for collection out of the deposits of the plaintiff in its bank, and charge the same as a credit on the account.

If you so find, your verdict will be for the defendant.

If you do not so find, your verdict will be for the plaintiff.

If you do not find by a preponderance of the evidence that the note was payable at the People’s National Bank of Newark, Ohio, but do find, by n preponderance of the evidence, that, after the payment of the note by defendant, it notified the plaintiff that it had paid the same out of the .amount of his deposits in the bank, and you find that the plaintiff had knowledge that the bank had so paid the same to him, and made no objection at the time or afterwards, and ratified the payment by assenting thereto, and accepted said note in settlement with the bank of his deposit account, the defeudant is entitled to a verdict at your hands, and your verdict will be for the defendant.

But, if you find the plaintiff, when he was notified by the bank of the payment of said notó by it, objected to the same, arid refused to accept .and ratify the payment by assenting thereto, and demanded payment by the defendant, to him, of the amount of §aid note, the plaintiff is entitled to recover, and your verdict will be for the plaintiff for the amount of said note at the time of such payment, with interest thereon from the date .of ■such payment until the first day of this court — January 2, 1895.

The court instructs you that, whether or not the said note made by the plaintiff was, in fact, intended by him, when executed, and known and understood by the bank to be payable at the People’s National Bank of '.Newark, Ohio, or, if not, whether or not the plaintiff ratified the payment of said note by the defendant, by assenting thereto, and whether or not the plaintiff demanded payment thereof by the bank' to him, are each and all ■of them questions of fact exclusive^ to be determined by you from all the evidence in the case, under the instructions given as to the preponderance of evidence given in the case.

If you find for the plaintiff, your verdict will be for the plaintiff for the amount of said note, with interest thereon to the first day of this term, to-wit: January 2, 1895.

If you find for the defendant, your verdict will be: We find for the defendant.

Choose one of your number foreman; let your verdict be reduced to writing; signed by him and bring the same into court.

Kibler & Kibler and S. L. James, for plaintiff, cited: 1st Daniel on Neg. Instr., sec. 324 and sec. 326, a and b, and foot notes; 2 A. & E. E. of L. 102, and note 1 to page 101; Wood v. Merchants' Savings Co., 41 Ill. 247; Bank v. Myer, 20 S. W. Rep. 406; Bank v. Bank, 132 Mass 150; Scott v. Shirk, 60 Ind. 160; Bank v, Hamilton, 109 Ill. 479, 482 ; 50 Ohio St. 151.

T. B. Fulton and J. M. Dennis, on behalf of the Bank, cited: 1st Daniel on Neg. Instr., 299; 2 A. & E. E. of L. 328; 46 N. Y. 82 ; 80 N. Y. 106; 2 Lawson’s Rights and Remedies, 950; 21 Amer. State Rep. 908; 49 Ohio St. 362.