Rogers Commission Co. v. Farmers' Bank

Supreme Court of Arkansas

Rogers Commission Co. v. Farmers' Bank

140 S.W. 992, 100 Ark. 537, 1911 Ark. LEXIS 402

CourtSupreme Court of Arkansas

DecidedOctober 30, 1911

StatusPublished

Cited by10 cases

This text of 140 S.W. 992 (Rogers Commission Co. v. Farmers' Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rogers Commission Co. v. Farmers' Bank, 140 S.W. 992, 100 Ark. 537, 1911 Ark. LEXIS 402 (Ark. 1911).

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Opinion

Kirby, J.,

(after stating the facts). This case was tried upon a wrong theory of the law. The complaint did not state a cause of action, there being no liability upon the part of the bank to the payment of the check of one of its depositors until the acceptance of the same by the bank, regardless of the state of the depositor’s account. This court has already held, with the decided weight of authority, that the giving of a check upon a bank is not an assignment of the amount of it to the payee, upon which he can bring a suit against the bank for its payment, there being no privity between the drawee bank and the holder of the check until acceptance by it. Sims v. American Nat. Bank, 98 Ark. 1.

The amendment asked to be made was material, was in the discretion of the trial' court to permit, and was shown by the testimony to rest upon such facts as were within the exclusive knowledge of the defendant, not known to, and that could not have been sooner ascertained by, the plaintiff. The facts furnishing the basis for the proposed amendment were disclosed by the defendant’s testimony, and were submitted to the jury without its objection. Defendant could have been in no way surprised, nor its defense of nonliability changed, by the amendment which was offered to be made as soon as the facts were discovered, and the court should have granted the motion and permitted the amendment. Southern Ins. Co. v. Hastings, 64 Ark. 257.

The question for the decision of the jury was whether the bank had become liable to the payment of the check by reason of it having been marked paid and charged to the drawers’ account, under all the circumstances and testimony relating thereto, and this question was not, and could not have been, submitted to the jury under the original complaint and the erroneous instructions given by the court.

It was not necessary to the bank’s liability that it should have on deposit to the drawers’ credit more than the amount of this check at the time of its presentation, for it would have become liable to its payment by an acceptance of it, and could have permitted an overdraft as it had usually done, or , withheld its own check, which it claimed to have in its drawer against the account of the makers of the check, which latter the testimony indicates it did do.

For the error in refusing the amendment and giving said improper instructions, the judgment is reversed, and the case is remanded with directions to permit the amendment and for a new trial.

McCulloch, C. J., dissenting.

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Kirby, J.,

(after stating the facts). This case was tried upon a wrong theory of the law. The complaint did not state a cause of action, there being no liability upon the part of the bank to the payment of the check of one of its depositors until the acceptance of the same by the bank, regardless of the state of the depositor’s account. This court has already held, with the decided weight of authority, that the giving of a check upon a bank is not an assignment of the amount of it to the payee, upon which he can bring a suit against the bank for its payment, there being no privity between the drawee bank and the holder of the check until acceptance by it. Sims v. American Nat. Bank, 98 Ark. 1.

The amendment asked to be made was material, was in the discretion of the trial' court to permit, and was shown by the testimony to rest upon such facts as were within the exclusive knowledge of the defendant, not known to, and that could not have been sooner ascertained by, the plaintiff. The facts furnishing the basis for the proposed amendment were disclosed by the defendant’s testimony, and were submitted to the jury without its objection. Defendant could have been in no way surprised, nor its defense of nonliability changed, by the amendment which was offered to be made as soon as the facts were discovered, and the court should have granted the motion and permitted the amendment. Southern Ins. Co. v. Hastings, 64 Ark. 257.

The question for the decision of the jury was whether the bank had become liable to the payment of the check by reason of it having been marked paid and charged to the drawers’ account, under all the circumstances and testimony relating thereto, and this question was not, and could not have been, submitted to the jury under the original complaint and the erroneous instructions given by the court.

It was not necessary to the bank’s liability that it should have on deposit to the drawers’ credit more than the amount of this check at the time of its presentation, for it would have become liable to its payment by an acceptance of it, and could have permitted an overdraft as it had usually done, or , withheld its own check, which it claimed to have in its drawer against the account of the makers of the check, which latter the testimony indicates it did do.

For the error in refusing the amendment and giving said improper instructions, the judgment is reversed, and the case is remanded with directions to permit the amendment and for a new trial.

McCulloch, C. J., dissenting.

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140 S.W. 992, 100 Ark. 537, 1911 Ark. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-commission-co-v-farmers-bank-ark-1911.

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