1 Ala. 148 (Ala. 1840), Branch Bank of Alabama v. Knox

Citation1 Ala. 148
Opinion JudgeGOLDTHWAITE, J.
Party NameTHE BRANCH OF THE BANK OF THE STATE OF ALABAMA AT MONTGOMERY v. KNOX & CO.
AttorneyGEO. GOLDTHWAITE, for the plaintiff in error DARGAN, contra.
CourtSupreme Court of Alabama

Page 148

1 Ala. 148 (Ala. 1840)

THE BRANCH OF THE BANK OF THE STATE OF ALABAMA AT MONTGOMERY

v.

KNOX & CO.

Supreme Court of Alabama

January Term, 1840

Writ of error to the Circuit Court of Montgomery County.

ACTION of assumpsit, for not collecting a bill of exchange. The declaration states that the Bank undertook the collection of the bill, and to make the necessary demand of payment at the time and place when and where the same was due. The breach assigned is, that the Bank omitted to present it for payment, whereby the amount was wholly lost to the plaintiffs. Demurrer to the declaration. This was overruled; and the Bank then pleaded non-assumpsit; on which issue a verdict was found, and judgment rendered for the plaintiffs.

At the trial it was proved, that it was usual for the Bank to receive bills payeble in Mobile, for colleetion, and that the rate of exchange between Montgomery and Mobile, was from one-fourth to one-half per cent.; that the Bank had an officer, whose duty it was, to send forward the paper received for collection; that this officer neglected to transmit the bill deposited by the plaintiffs for collection, by which neglect the endorsers were discharged; that the endorsers were solvent, but the drawer and acceptor were totally insolvent; that two or three weeks before the trial, the plaintiff's agent had received the bill from the Bank and handed it to the plaintiff's attorney: and that the Bank officer had given bond to the Bank for the faithful performance of his duty. On this state of proof, the court charged the jury: That if they believed the Bank received the bill for collection in conformity to its usage, it was bound to use due diligence to insure its collection; and if, by its negligence, the endorsers were discharged, and the bill became worthless to the plaintiffs, they were entitled to recover.

The defendant requested the Court to charge the jury:

1st. That the Bank had no power to receive the bill for collection, and therefore it was not liable:

2d. That if the Bank appointed a competent officer to receive and attend to the collection of paper deposited for that purpose, the bank was not liable:

3d. That if the plaintiffs received the bill from the Bank after the neglect, this circumstance, unexplained, authorized the presumption, that the plaintiffs had waived the neglect. These instructions were refused, but the court informed the jury, that if the bill of exchange was withdrawn from the Bank, and handed to the plaintiff's attorney, to be used at the trial of the suit, this act, by itself, did not amount to a waiver of the neglect.

The defendant excepted; and the assignment of errors opens the demurrer as well as the several questions arising out of the instructions given and refused.

GEO. GOLDTHWAITE, for the plaintiff in error--relied on two points to reverse the judgment:

1st. That the Bank is not authorized by its charter, to make such a contract as declared on:

2d. That Knox & Co. waived their action against the Bank, by withdrawing the bill from its custody; at least, this matter should have been left with the jury.

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