Gruenther v. Bank of Monkoe

133 N.W. 402, 90 Neb. 280

• Court: Nebraska Supreme Court
• Decided: November 28, 1911
• Docket: No. 17,030
• Status: Published

Opinions

Reese, O. J.

This action was comméneed before a justice of the peace in Platte county. The cause was appealed to the district court, where judgment was rendered in favor of plaintiff. Defendant appeals.

As the pleadings in the justice court were, .by agreement, adopted in the district court, it will be necessary to notice the bill of particulars and answer thereto as filed in the inferior court. It is alleged by plaintiff, in substance, that defendant is a bank incorporated under and by virtue of the laws of this state; that on the 7th day of March, 1910, A. J. Beckwith, a customer of defendant, who had an account with it, made his check thereon for the sum of $129.60; that before the delivery and acceptance by plaintiff of said check plaintiff informed defendant that Beckwith desired him to accept the check, and inquired if the same was good, and was informed by defendant that the check was good and would be paid on presentation, whereupon plaintiff accepted the check, relying on the representations of defendant, paying Beckwith the said sum of $129.60; that afterward, in the regular course of business, - the check was presented, payment demanded, and refused by defendant, defendant falsely claiming' that Beckwith had no funds in its hands wherewith to pay the same, but that it retained the check; that Beckwith, was insolvent, having no property other than his account in said bank, as defendant well knew, and that Beckwith has since left this state. Judgment was demanded for the $129.60, with interest and costs.

Defendant answered by admitting its corporate character; alleging that no note or memorandum was made by it, or any one authorized so to do, of the prom-, ises alleged in the bill of particulars; that the action was not prosecuted by the real party in interest, but in behalf and for the benefit of said Beckwith. A general denial of all unadmitted allegations of the bill of particulars was made. No other pleadings were filed in the district court.

At the close of the evidence plaintiff was permitted to amend the bill of particulars by inserting therein the averment that, “prior to the presentation of said check to the defendant, said defendant received from said Beck-with the sum of $129.60 for the express purpose of paying his said indebtedness to plaintiff, and still retains said money in its possession notwithstanding said fact.” A proper exception was taken by defendant.

It is insisted that this amendment changed the cause of action from that upon which the suit was brought before the court of original jurisdiction. It is true that the facts stated in the bill of particulars in the justice court were that the check was accepted upon defendant’s representations that it was good and would be paid on presentation, but, when presented, it was falsely claimed that Beckwith had no funds wherewith to pay the same. This was equivalent to a charge that it had the funds. It may be doubted if the amendment added anything to these averments, but it is clear that the suit during the whole history of the case was for the $129.60 involved in the transaction, and for nothing else, and therefore the “cause of action” was not changed.

It is also insisted that, as it was distinctly alleged in the answer that the suit was not prosecuted in the name of the real party in interest and was not denied by a reply, the allegation must be taken as true, and is a complete defense to the action. We are unable to find that this question was raised upon the trial by objections to evidence or otherwise, but that the case was as fully tried upon all issues permissible as though a reply had been filed. It is the settled laAV of this state that, if such is the case, no prejudicial error is committed. Western Horse & Cattle Ins. Co. v. Timm, 23 Neb. 526; Missouri P. R. Co. v. Palmer, 55 Neb. 559; Loan & Trust Savings Bank v. Stoddard, 2 Neb. (Unof.) 486; Minzer v. Willmam Mercantile Co., 59 Neb. 410; Gross v. Scheel, 67 Neb. 223. However, it is doubtful if this averment was anything more in its effect than a denial of that fact would have been, and, if so, no reply was necessary. Peaks v. Lord, 42 Neb. 15.

This suit is what has been heretofore designated as an action at law, and is not triable de novo in this court, and the finding of the district court upon questions of fact cannot be disturbed unless clearly wrong. If the case turned on the matter of the acceptance of the check, the provisions of section 9330, Ann. St. 1911, that the acceptance of a bill must be in writing in order to bind the drawee, might be applied, and the evidence of such acceptance would be wanting. But under tbe evidence that is not this case. There Avas evidence that after the conversation between plaintiff and defendant, which was by telephone,’ but before the check was presented, the draAver withdrew his deposit from the bank, but directed it to withhold the sum of $129.60 to meet and pay a check for that sum which he had given, and which was done. This Avould obviate the application of the statute above referred to, as well as other cited sections upon tbe same or cognate subjects.

The evidence shows that plaintiff was the clerk of the district court; that Beckwith had been convicted of a misdemeanor, the fine and costs amounting to $129.60. He was taken into custody and brought to the office of the clerk, when he inquired as to the amount of money it would take to pay what was charged against him. On being informed that it wag $129.00, lie proposed giving his check on the defendant bank, located at Monroe, in that county, when plaintiff called the bank by telephone and made the inquiry above mentioned, and was informed that Beckwith had funds on deposit to protect the check, and plaintiff stated that he would accept the check, which was agreed to by the bank. Plaintiff accepted the check and receipted the judgment, and, when the money was withdrawn, Beckwith left $129.60 to pay an outstanding check. After the withdrawal of the money the bank officers re-examined the account, there being two — one known as the “sale account,” the other as his check account; that the check account had been overdrawn, which was not observed at the time of the payment of the money to Beckwith. In the meantime Beckwith started to leave the state. The president of the bank followed him to Columbus and received from him the sum of $80, which with the $129.60 a little more than paid the overdraft. Beckwith immediately left the state, leaving no property.

It is insisted that plaintiff was not a holder of the check in question for value, having parted with nothing in exchange therefor. This contention is based upon the claim that the judgment against Beckwith was not satisfied of record and could yet be enforced. The evidence shows without contradiction that, after having received the response from defendant that there was money on deposit with which the check could be paid, plaintiff accepted the check, gave Beckwith a receipt in full for the amount of the fine and costs, and noted the receipt on the criminal docket. Beckwith immediately left the jurisdiction of the court and of the state. We are impressed with the belief that it would be quite difficult for plaintiff to avoid having to report the $129.60 as collected and account for it. In that event the contention would have to fail. The receipt to Beckwith and the entry on the record would be against plaintiff. But as Beckwith left the money in the hands of defendant to pay the particular check, the bank knowing beforehand that it wag out, we are at loss to see how defendant can maintain that contention. The money left with defendant was devoted to that specific purpose, so accepted and held. The bank had a plain duty to perform, which was to pay it over.

We find no prejudicial error in the finding and judgment of the district court.' The judgment is therefore

Affirmed.