Armour-Cudahy Packing Co. v. First Nat. Bank

• Decision Date: 18 April 1892
• Citation: 11 So. 28,69 Miss. 700
• Court: Mississippi Supreme Court
• Parties: ARMOUR-CUDAHY PACKING CO. v. FIRST NATIONAL BANK OF GREENVILLE, MISS

11 So. 28

69 Miss. 700

ARMOUR-CUDAHY PACKING CO. v. FIRST NATIONAL BANK OF GREENVILLE, MISS

Supreme Court of Mississippi

April 18, 1892

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

Action by appellant against the First National Bank of Greenville Miss. to recover $ 1,047.60, alleged to have been deposited with the bank, as the money of plaintiff, by one Lamon.

It appears that on the eighteenth day of January, 1889 plaintiff, doing business in South Omaha, Neb., consigned a car-load of meat to Lamon, at Greenville, and, at the same time, drew a draft on him for $ 1,524.96, the price of the meat, and the draft was sent to the defendant bank for collection. The car was delayed, and did not reach Greenville for several weeks. Before it reached there the bank returned the draft to plaintiff. The car finally arrived, and was delivered to Lamon, who testified that he notified the bank that he had received it. He also testified that he notified the bank that he was disposing of the meat as the agent and for account of plaintiff; that the proceeds of sale were deposited in the bank, and that the officials were notified by him of the source from which the money arose, and that it belonged to plaintiff. The account of Lamon at the bank was kept in his own name, but his pass-book was introduced showing certain entries mentioned in the opinion of the court, He testified that these were made to indicate the amounts collected on account of the meat, and to advise the bank of the source from which the money was received. It appears that he had disposed of the meat, and collected all the proceeds, by about the first of March. After that he made deposits, and drew checks upon the bank against his balances. He testified that, some time after the deposits had been made, he ascertained that the money had not been remitted to plaintiff by the bank, as agreed, and that he called on the bank in regard to the same, and was informed that all amounts deposited by him had been applied to the payment of his account, which was overdrawn. The officers of the bank contradicted, in the main, the testimony of Lamon as to any notice of plaintiff's rights. The other facts necessary to an understanding of the case are stated in the opinion.

The court gave a peremptory instruction in favor of defendant, and judgment was entered accordingly, from which the plaintiff appeals.

Reversed and remanded.

Yerger & Percy, for appellant.

A peremptory instruction is improper, where a verdict, rendered on the facts adduced, would be allowed to stand, or where there is doubt. Swann v. Insnrance Co., 52 Miss. 704; Dillon v. Patterson, 66 Ib., 204; Lowenstein v. Powell, 68 Ib., 73.

The testimony of Lamon shows that the bank had full notice of plaintiff's rights; that the car-load of meat belonged to it, and that the proceeds were deposited as the property of plaintiff, and that the bank was requested to remit the amount accordingly. This testimony is corroborated by the facts and circumstances of the case, and the question at issue should have been submitted to the jury.

It is not necessary to prove any privity of contract with the bank, other than such as arose out of the fact that it had received plaintiff's money, and failed to pay it over. Walker v. Conant (Mich.), 31 N.W. 296; Bank v. Insurance Co., 104 U.S. 54; 71 Pa. 213, 287; 91 Ib., 465; Morse on Banking, §§ 208, 342 and 590.

There was a misapplication of the funds by the bank, after notice. The bank, being privy thereto, is liable to plaintiff. Morse on Banking, § 317; 35 F. 247; 18 Texas, 811; Eyrich v. Bank, 67 Miss. 60.

Jayne & Watson, for appellee.

The court did not err in giving a peremptory instruction for defendant. Lamon kept an account with the bank in his own name. Deposits were thus made, and cheeks were drawn upon his balances. While it may be true that he instructed the bank to forward exchange to plaintiff, it is also true that the money which he expected to be forwarded was deposited to his own credit, and he never gave the bank a check for any of its funds at the time he claims to have requested the remittance made to plaintiff. The only time when he intimates that he offered, a check for this purpose, was after he had been permitted to Overdraw, and after the bank had informed him that his checks would not be honored until he had made good his account. It will be noted that he claims to have collected the money by the early part of March, and he afterwards made other large deposits and drew large sums, never suggesting to the bank that he had failed to remit plaintiff, or offering a check for any amount to be remitted.

The case does not come within the rule laid down in Bank v. Insurance Co., 104 U.S. 54, but is controlled by the case of Eyrich v. Bank, 67 Miss. 60, and especially that part of the opinion beginning on page 72.

OPINION

WOODS, J.

It appears from the evidence of the witness, Lamon, that, as the agent of the Armour Packing Company, he received a certain car-load of meat, which he was authorized to sell for and on account of his principal, and that, as such agent, he did sell $ 1,047.67 worth of said meat, and deposited said sum with the First National Bank of Greenville in his own name and to his own credit. It likewise appears, from the evidence of this witness, that, at the time the money...