Gibbons v. Farmers' Bank

143 S.E. 19, 145 S.C. 141, 1928 S.C. LEXIS 84

• Court: Supreme Court of South Carolina
• Decided: April 23, 1928
• Docket: 12433
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Brease.

The plaintiff, in the Court of Common Pleas for Florence County, had a verdict in his favor against the defendant bank for $750, actual damages, for failure of the defendant to pay plaintiff’s check drawn in favor of S. J. Tomlin-son for $4. On motion for new trial, the trial Judge, Hon. M. E. Bonham, granted a new trial nisi, unless the plaintiff should remit of the verdict in his favor the sum of $350. The plaintiff made the required remission.

The appeal here by the defendant charges error on the part of the Circuit Judge in not directing a verdict, and for failure to grant a new trial generally. All the exceptions may be disposed of together.

The one question really before the Circuit Judge — and that is the only question before this Court — depends upon whether or not there was any evidence to go to the jury as to the presentation of plaintiff’s check for payment at the bank on February 2d, or at any time thereafter prior to April 2, 1925. It is established beyond question that on February 2, 1925, plaintiff deposited in the defendant bank the sum of $47.15, and from that date until and including April 2, 1925, plaintiff had at all times more than the sum of $4 in the bank.

The defendant admits, and really its sole claim here is and in the Court below was, that plaintiff’s check was presented to the bank on January 31, 1925, two days before plaintiff’s deposit was made with the bank.

The testimony of the plaintiff, who was the sole witness for himself, was to the effect that on January 30, 1925, he arranged with Mr. Tomlinson, a merchant in Olanta, who was also president of the defendant, to discount plaintiff’s note for $50. The note was prepared and executed by plaintiff, who was to take it to his home in the country and secure the indorsement of two of his friends, and thereupon he was to return the note by mail to the bank, which had agreed to discount the paper and place the proceeds to plaintiff’s credit. At the time of executing the note, plaintiff purchased some goods from Mr. Tomlinson and gave him the check in question, which was postdated February 2, 1925, by which time it was understood that the indorsed note would be in the hands of the bank to be discounted to plaintiff’s credit. Plaintiff testified that as per the arrangements made with Mr. Tomlinson, he secured the indorsement of the note and mailed it at the New Zion post office on January 31st. It is not shown positively when the note was received by the bank, but it was. evidently received on February 2d, or prior thereto, as plaintiff was on that date given credit for the proceeds of the note. After plaintiff had withdrawn all of his funds from the bank, in August, 1925, he was arrested on a warrant, issued at the instance of Mr. Tomlinson, for giving the check in question without sufficient funds to meet the same; and upon settlement by the plaintiff the criminal charge was withdrawn. This warrant and the affidavit of Mr.. Tomlinson, upon which the warrant was issued, were introduced in evidence by the plaintiff. The witnesses for the defendant were clear in their statements that by mistake of an employee of Mr. Tomlin-son plaintiff’s check was presented to the bank on January 31, 1925, prior to the deposit of the proceeds of the note.

While plaintiff’s testimony by itself, perhaps, did not establish the presentation of the check on February 2d, or on any date thereafter, the evidence furnished by the plaintiff, taken with some of the evidence furnished by the defendant, was sufficient, in our opinion, to require that the case be submitted to the jury. The witness, J. T. Wates, who is employed by Mr. Tomlinson, testified positively that he presented the check on January 31st, and that it was presented at a subsequent date, but that he did not recall the date of the second presentation. He said that he left Olanta on February 4th, on his “honeymoon,” and that he returned to his work about a week afterward; that soon after he returned Mr. Tomlinson went away for a few days, and that it was about a month or so before he caught up with his work.

It is to be presumed, of course, that within a reasonable time after February 2d, the date of the check, presentation thereof was made at the bank. Mr. Tomlinson’s affidavit, on which the warrant of arrest was based, was a little evidence that the check had been presented for payment within a reasonable time after its date, February 2d. These facts and presumptions, coupled with the evidence of Mr. Wates, together with all the other circumstances in the case, required the submission of the case to the jury. We admit that the proof of presentation is not overwhelming, but it must be conceded that the plaintiff was at some disadvantage in proving his case, since the person to whom he made the check happened to be the president of the bank.

The judgment of this Court is that the judgment below be and the same is hereby affirmed.

Mr. Chieé Justice Watts and Messrs. Justices Stab-EER and Carter concur.