Hiller v. Bank of Columbia

• Decision Date: 29 October 1913
• Citation: 79 S.E. 899,96 S.C. 74
• Parties: HILLER v. BANK OF COLUMBIA.
• Court: South Carolina Supreme Court

79 S.E. 899

96 S.C. 74

HILLER v. BANK OF COLUMBIA.

Supreme Court of South Carolina

October 29, 1913

Appeal from Common Pleas Circuit Court of Richland County; T. H Spain, Judge.

"To be officially reported."

Action by Nannie E. Hiller against the Bank of Columbia. From a judgment for plaintiff, defendant appeals. Reversed.

See also, 92 S.C. 445, 75 S.E. 789.

D. W Robinson, of Columbia, for appellant. Frank G. Tompkins, of Columbia, for respondent.

HYDRICK J.

A short time after her husband's death, in 1904, plaintiff collected a policy of insurance on his life, which was payable to her, in her own right, and deposited the money in the defendant bank to her credit as "Nannie E. Hiller, Adm'x." Her husband left a will of which she was executrix, and, after his death, she continued a mercantile business in which he had been engaged, though she was not authorized to do so by the will. Her brother-in-law, John G. Hiller, was her agent in the management of the business. He made deposits to her credit on her said account at bank and, in doing so, signed her name in the indorsement of checks payable to her order and signed her name to checks on said account. She also drew checks on said account. She testified that at first she drew all the checks herself but later she gave him authority to sign her name to checks. She also said that, in signing her name, he tried to imitate her signature, and the testimony showed that it was difficult for even an expert in handwriting to distinguish them.

On April 19, 1910, plaintiff deposited $200 in the defendant bank to her credit as "Nannie E. Hiller," without "Adm'x" added. Some time in June thereafter a number of checks were presented at the bank, signed "Nannie E. Hiller, Adm'x," payment of which would have overdrawn that account. The bank was about to return them unpaid, when John G. Hiller happened to go into the bank, and, on his attention having been called to the matter, he directed the bank to charge them to Mrs. Hiller's personal account, saying that it was all hers--her business. This was done, and the amount to plaintiff's credit was thereby exhausted, except 13 cents, about which there is no controversy. The bank having refused, on demand, to pay Mrs. Hiller the $200 so deposited by her, she brought this action to recover said sum. The defense was that the money had been paid out on checks drawn by her or her authorized agent. The defendant attempted to show that the checks which had been charged to her personal account were signed by the plaintiff herself, and the evidence was conflicting as to whether she or John G. Hiller signed them. She admitted that she signed one for $55.20, which paid for a bale of cotton bought at the store, but denied signing the others. The one she admitted signing did not have "Adm'x" after her signature. The others did. A number of handwriting experts testified that, in their opinion, she signed most, if not all, of them. The bank contended further that the course of dealing between it and plaintiff and John G. Hiller, with the knowledge and acquiescence of plaintiff, had been such that it was justified in obeying his directions to charge the checks to her personal account. In support of that contention, besides the other testimony showing the general course of dealing, it introduced testimony to the effect that on a former occasion plaintiff had two accounts at the bank, and John G. Hiller was allowed to draw checks on both.

Defendant also sought to show that the "Adm'x" checks which had been charged to plaintiff's personal account were drawn to pay her own debts for the purpose of asking that, as both funds were held by her in her own right, it be allowed to set off said cheeks against the amount to her credit on the personal account. The court excluded the testimony and ruled out the defense on the ground that it had not been pleaded in the answer. In this connection we may dispose of the exceptions based upon that ruling.

On the first appeal (92 S.C. 445, 75 S.E. 789) this court said with regard to that defense: "To avoid misunderstanding, we refer to another point not properly made by the appeal. When the depositor has not assigned his demand against the bank by check or otherwise, the right of the depositor to demand his balance is subject to the right of the bank to set off against the balance any debt due by him to the bank; and this right of the bank extends to a demand of the bank for money paid out on the depositor's debts without his authority, if the depositor subsequently ratifies the payment by adopting it for his own benefit. Lowrance v. Robertson, 10 S.C. 8; 27 Cyc. 838; Crumlish's Adm'r v. Central Imp. Co. et al., 38 W.Va. 390, 18 S.E. 456, 23 L. R. A. 120, 45 Am. St. Rep. 872, note. But the burden would be on the bank of properly pleading and proving such defense. This subject is referred to in the exceptions, but the defense was not alleged in the answer, nor was evidence on the point offered." Notwithstanding the plain declaration of the court that the defense had not been pleaded, and that it could not avail defendant, unless pleaded, no effort appears to have been made to obtain leave to plead it. Therefore there was no error in excluding the evidence offered to prove it.

Previous to the first trial, the defendant had set up in its answer the defense that plaintiff had mingled her own funds with those of her husband's estate in her account at the bank and had drawn them out from time to time. On plaintiff's motion this defense and all the allegations of the answer relative to the will of plaintiff's husband and his estate, and the mingling of the funds thereof with plaintiff's own funds, were stricken out; and on the former appeal it was held that there was no reversible error in striking out those allegations because the undisputed evidence made only one issue, to wit, whether the money deposited by plaintiff, which, according to the undisputed evidence, was her own, had been drawn out by her or by her authorized agent, and that that issue was raised by the allegation of the answer that it had been so drawn out. Notwithstanding this ruling, on the second trial in the court below the plaintiff was allowed, against the objection of the defendant, to introduce her husband's will, and her attorney was allowed to argue therefrom to the jury that she had two funds in the bank, one of her husband's estate and one of her own; and the court refused to charge defendant's request that the will was not material to the issues in the case, and that it gave plaintiff no authority to carry on the mercantile business for five years after her husband's death.

The will was improperly admitted, because, on the second trial as on the first, the undisputed evidence was that the money deposited in both accounts belonged to plaintiff in her own right. Therefore the admission of the will could only confuse the issue.

It might have been held that the error in admitting it was cured by the charge, because the court correctly concluded and held that there was no testimony that any estate money was deposited in the "Adm'x" account, if it were clear that the jury understood that holding as an instruction...