Tecumseh National Bank v. Saunders

• Decision Date: 03 February 1897
• Docket Number: 7028
• Citation: 70 N.W. 42,50 Neb. 521
• Parties: TECUMSEH NATIONAL BANK v. ANNA B. SAUNDERS
• Court: Nebraska Supreme Court

70 N.W. 42

50 Neb. 521

TECUMSEH NATIONAL BANK v. ANNA B. SAUNDERS

No. 7028

Supreme Court of Nebraska

February 3, 1897

ERROR from the district court of Johnson county. Tried below before BABCOCK, J. Reversed.

REVERSED.

John H Ames, C. Gillespie, and S. P. Davidson, for plaintiff in error.

T Appelget, J. Hall Hitchcock, and L. C. Chapman, contra.

RYAN C. NORVAL, J. dissenting.

OPINION

RYAN, C.

There was a judgment in favor of Anna B. Saunders in the district court of Johnson county, of which the judgment defendant seeks a reversal in this court. With this there were submitted eight other cases, in each of which the Tecumseh National Bank was the plaintiff in error, the defendants in error being, respectively, Andrew Head, Ann Smith, Sarah A. Brown, Allora Hull, Elias Young, Alice Kershaw, Jane Turner, and Luke Corson. On behalf of all parties, it was earnestly requested on the argument that the evidence should be considered with reference to its sufficiency to sustain a verdict, and, if there was not sufficient for that purpose, that this court should so indicate, thereby enabling the parties litigant in all the cases to avoid further costs, for it was conceded by each party that in any further trial of either case the evidence must necessarily be the same as is contained in the bill of exceptions herein submitted for our examination We have, therefore, given the careful examination to the evidence which the interests involved demand, and shall, without separate discussions, direct in each case such future action to be taken as we shall find to be proper from our consideration of this evidence.

The original petition in this case was filed August 19, 1893, against the Tecumseh National Bank, as successor of the Banking Association of Russell & Holmes, for the collection of a certain indebtedness of Russell & Holmes, as to which, it was alleged, the Tecumseh National Bank was liable. As requested, we have undertaken to determine as to this liability upon consideration of the evidence and shall, therefore, forbear a review of the pleadings.

There is no question made that the corporation known by the name of Russell & Holmes was indebted to Anna B. Saunders as claimed upon two certificates of deposit, one of which was for $ 150, dated June 11, 1889, the other for $ 250, dated July 26, 1889. Neither of these was for a fixed time but by each it was provided that if the money was left on deposit for six months it should draw interest at the rate of five per cent per annum. The transfer by Russell & Holmes to the Tecumseh National Bank, which was April 12, 1890, was without the knowledge, much less the assent, of Anna B. Saunders. When she first learned of the existence of the Tecumseh National Bank it was doing a banking business in the same room and under the management of officers who had managed the banking business of Russell & Holmes. It was shown that by its own procurement the Tecumseh National Bank was advertised from May 30, 1890, until December 3, 1892, in a newspaper published at Tecumseh, as a successor of the bank of Russell & Holmes. As was pointed out in Austin v. Tecumseh Nat. Bank, 49 Neb. 412, 68 N.W. 628, the inference to be drawn from the successorship of one bank to another is controlled by the circumstances of such transfer. As has already been indicated, the defendant in error was not a party to this transfer and in no way sanctioned it, so that her rights are to be entirely governed by the inferences proper to be drawn from the circumstances attendant upon and constituting the transfer between these two banking institutions. Before this transfer there had been deposited with Russell & Holmes the sum of $ 25,000 to be used in buying bonds as a basis of issue for the proposed national bank and to defray its other necessary expenses. When the transfer took place this amount was transferred to the credit of the Tecumseh National Bank, and of the $ 28,740 cash held by Russell & Holmes, $ 14,225.33 was likewise transferred. The association of Russell & Holmes, just previous to the transfer, had loans, discounts, warrants, and orders to the amount of $ 139,825.15, of which there was turned over to the Tecumseh National Bank when it began business on April 14, 1890, $ 48,155.53 in amount, leaving in the possession of Russell & Holmes bills receivable represented by the difference between the above items. Of individual deposits owing by Russell & Holmes, the...