American Exch. Nat. Bank v. Loretta Gold & Silver Min. Co.

• Decision Date: 09 November 1896
• Court: Illinois Supreme Court
• Parties: AMERICAN EXCH. NAT. BANK v. LORETTA GOLD & SILVER MIN. CO.

165 Ill. 103

46 N.E. 202

AMERICAN EXCH. NAT. BANK

v.LORETTA GOLD & SILVER MIN. CO.¹

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, First district.

Action by the Loretta Gold & Silver Mining Company against the American Exchange National Bank to recover a deposit. A judgment for defendant was reversed by the appellate court (60 Ill. App. 626), and defendant appeals. Affirmed.Swift, Campbell, Jones & Martin, for appellant.

Defrees, Brace & Ritter, for appellee.

This is an action of assumpsit brought by appellee against appellant to recover $750, deposited by appellee with appellant under the circumstances hereinafter stated. The declaration contained the common counts only, and the plea was the general issue. The case was tried before the court without a jury, upon an agreed state of facts. Plaintiff requested the court to hold the following proposition of law: ‘The court holds, as a matter of law, that, upon the facts admitted and agreed upon in this case, plaintiff is entitled to recover.’ Defendant requested the court to hold as follows: ‘That, upon the facts admitted and agreed upon in this case, the finding upon the issues therein must, as a matter of law, be for the defendant.’ The court refused the proposition tendered by the plaintiff, and held the proposition tendered by the defendant, and thereupon found the issues for the defendant, and, after overruling a motion for new trial, rendered judgment for the defendant, and against the plaintiff, for costs. Upon appeal to the appellate court, the latter court reversed the judgment of the circuit court, and entered judgment for $750 and costs in favor of the present appellee, and granted a certificate of importance. The present appeal is from the judgment of the appellate court.

The agreed statement of facts is as follows:

‘Plaintiff is a corporation organized under the laws of Wisconsin, and owned and operated a mine at Barker, Montana. M. J. Dunn was plaintiff's general superintendent at Barker. Defendant is a banking corporation organized under the national banking act, and does business at Chicago, Illinois. On July 21, 1893, plaintiff mailed, at Milwaukee, Wisconsin, to defendant, at Chicago, Illinois, a letter inclosing a draft, in the form of a draft drawn by one bank upon another, payable to the order of defendant, for the sum of $750. Copy of letter inclosing draft as follows: ‘Inclosed please find draft for $750, for credit of account Merchants' National Bank, Great Falls, Montana, for the use of M. J. Dunn, our superintendent at Barker, Montana.’On July 21, 1893, plaintiff telegraphed said Dunn, at Barker, Montana, as follows: ‘Have deposited your account seven hundred and fifty dollars.’ On same day plaintiff telegraphed Merchants' National Bank, of Great Falls, Montana: ‘Have deposited seven hundred and fifty dollars M. J. Dunn's account.’ Prior to May 10, 1893, and up to and including the failure of the Merchants' National Bank, M. J. Dunn kept a bank account with it in his own name, and kept in said account, without the knowledge or consent of plaintiff, but with the knowledge of said Merchants' National Bank, funds belonging to the plaintiff. Said $750 was to be used by Dunn as plaintiff's superintendent and on plaintiff's account. Said Merchants' National Bank, on receipt of the foregoing telegram from plaintiff to it, on July 21, 1893, credited said $750 to said Dunn's account. The particular manner in which the deposit was made was unknown to the plaintiff, but the Merchants' National Bank knew that said funds belonged to plaintiff. On July 21, 1893, the Merchants' National Bank charged said $750 on its books to the defendant's account. The letter and draft for $750 were received by defendant at Chicago on July 22, 1893, and no other or different instructions regarding said draft were given to it by plaintiff. Plaintiff was not at the time of the receipt of the draft by defendant, nor has it since been, indebted to defendant in any sum whatever. Defendant, for more than a year prior to July 23, 1893, was the correspondent at Chicago of said Merchants' National Bank, and said last-named bank kept an open account current with the defendant. Said sum of $750 was on July 22, 1893, credited generally to the account of the Merchants' National Bank on its books, but without the knowledge or consent of the plaintiff said funds were never in fact forwarded by the defendant to the Merchants' National Bank or to Dunn; and on July 22, 1893, defendant, without the knowledge or consent of the plaintiff, mailed to said Merchants' National Bank a postal card advising said Merchants' National Bank that it had credited its account with said $750. Said postal card was not received by said Merchants' National Bank until after July 23, 1893.

‘At the close of business on July 23, 1893, said Merchants' National Bank closed its doors, and did not reopen them thereafter; and on the morning of July 24, 1893, said Merchants' National Bank went into the hands of the national bank examiner, pursuant to orders from the comptroller of the currency, and a receiver was subsequently appointed, who is now winding up the affairs of said bank. Plaintiff demanded from defendant said sum of $750 on July 26, 1893, and at divers times since. At the time of the receipt by the defendant of said $750, and at the time of the failure of said Merchants' National Bank, said bank was indebted to defendant in an amount largely in excess of $750. Defendant has not paid to the plaintiff said sum of $750, but has declined and refused to do so. On September 11, 1893, M. J. Dunn, without the knowledge, consent, or authority of the plaintiff, filed with the receiver of the Merchants' National Bank a proof of claim as follows: Affidavit of M. J. Dunn: That the Merchants' National Bank is justly indebted to him in the sum of $756.63 on account of individual deposit; that said sum is due to him alone; and that he has given no assignment or indorsement of the same, and knows of no set-off or legal or equitable defense,-sworn to before a notary public. Said claim has been allowed against said bank, but without the knowledge, consent, procurement, or authority of the plaintiff. Said claim includes a balance of $6.63 which on July 20, 1893, stood to the credit of Dunn, and also includes said sum of $750, placed to the credit of said Dunn on July 21, 1893, on receipt of plaintiff's telegram above mentioned, all of which was unknown to plaintiff. Said claim includes the $750 which plaintiff is seeking to recover in this case.

‘On May 10, 1893, plaintiff sent by mail, from Milwaukee, to defendant, at Chicago, a bank draft in the form of drafts usually drawn by one bank upon another, for $2,000, payable to its order, and inclosed in a letter, as follows: ‘Inclosed please find draft for $2,000, for credit of account of Merchants' National Bank, Great Falls, Montana, for use of M. J. Dunn, our superintendent at Barker, Montana.’ On the same day plaintiff telegraphed Dunn, ‘Have deposited your account $2,000,’ and telegraphed Merchants' National Bank, ‘Have deposited $2,000 M. J. Dunn's account.’ On May 10th, the Merchants' National Bank credited said $2,000 to Dunn's account, and on the same day charged same to defendant's account. Said Merchants' National Bank knew that said Dunn was plaintiff's superintenent, and that said fund belonged to plaintiff, and was to be used in plaintiff's business. Defendant received said draft for $2,000 on May 11, 1893, and placed the same to the credit of the Merchants' National Bank generally, without the knowledge or consent of plaintiff, and on May 11th advised the Merchants' National Bank, by letter, of said credit, without the knowledge or consent of the plaintiff. On June 2, 1893, plaintiff mailed defendant, from Milwaukee, a draft in the form drawn by one bank upon another, payable to its order, for $1,700, with letter of advice as follows: ‘Inclosed please find draft for $1,700 for credit of account of the Merchants' National Bank, Great Falls, Montana, use of M. J. Dunn, our superintendent at Barker, Montana.’ On June 2, 1893, plaintiff telegraphed Dunn, ‘Have deposited your account, $1,700;’ and on the same day telegraphed the Merchants' National Bank, ‘Have deposited $1,700 M. J. Dunn's account.’ The Merchants' National Bank received said telegram from plaintiff on June 2, 1893, and on the same day credited said $1,700 to the account of Dunn; but the particular manner in which said deposit was made was unknown to plaintiff. On the same day, the Merchants' National Bank charged said $1,700 on its books to defendant's account. Defendant received said last-mentioned letter on June 3, 1893, and, without the knowledge or consent of the plaintiff, credited the same generally on its books to the account of the Merchants' National Bank, and advised said bank of such credit by mail. On June 6, 1893, plaintiff mailed, at Milwaukee, to defendant, at Chicago, draft for $1,100, inclosed in letter of advice as follows: ‘Inclosed please find draft for $1,100 for credit of account of Merchants' National Bank, Great Falls, Montana, use of M. J. Dunn, our superintendent at Barker, Montana.’ On June 6, 1893, plaintiff telegraphed said Dunn, ‘Have deposited your account $1,100,’ and on the same day telegraphed the Merchants' National Bank, ‘Have deposited $1,100 M. J. Dunn's account.’ The Merchants' National Bank received said telegram on June 6, 1893, and credited said $1,100 to Dunn. On June 7, 1893, defendant received said last-mentioned letter and draft, and credited the same generally on its books to account of Merchants' National Bank, without the knowledge or consent of plaintiff, and on June 7th advised the Merchants' National Bank by letter of such credit.

‘On and prior to May 10, 1893, and up to and including the failure of the Merchants' National Bank, it had been agreed between plaintiff and said bank that, when plaintiff...