Bank of Commerce v. Goos

• Decision Date: 20 February 1894
• Citation: 58 N.W. 84,39 Neb. 437
• Parties: BANK OF COMMERCE v. GOOS.
• Court: Nebraska Supreme Court

39 Neb. 437

58 N.W. 84

BANK OF COMMERCE

v.GOOS.

Supreme Court of Nebraska.

Feb. 20, 1894.

Syllabus by the Court.

1. The damages recoverable for the refusal of a bank to pay a check drawn upon it by one who has funds with the bank wherewith to make such payment should not exceed such amount as reasonably and fairly, in the natural course of things, would result from such refusal.

2. General damages are such as the jury may give when the judge cannot point out any measure by which they are to be ascertained except the opinion and judgment of a reasonable man. Special damages are such as by competent evidence are directly traceable to defendant's failure to discharge his contract obligations or such duties as are imposed upon him by law.

3. When a party litigant has, by an evasion of the adverse ruling of the court, intentionally and willfully introduced evidence of facts improper for consideration by the jury, it must be presumed that such improper evidence has had a prejudicial effect, and the verdict should accordingly be set aside.

Error to district court, Douglas county; M. R. Hopewell, Judge.

Action by Peter Goos against the Bank of Commerce for failure to pay a draft. There was judgment for plaintiff, and defendant brings error. Reversed.Cornish & Robertson, for plaintiff in error.

C. A. Baldwin, for defendant in error.

RYAN, C.

By his petition filed in the district court of Douglas county, Neb., Peter Goos alleged that the Bank of Commerce was a corporation carrying on a general banking business, and that as such it invited and received deposits, to be held and paid out upon the checks of its customers; that during the month of September, 1889, the said Goos was a depositor in said bank, and had on deposit in said bank about $3,300 on the 20th of said last-named month. The injuries for which compensation was sought were described in the following language: “Plaintiff says that on the 20th day of September, 1889, and when he so had in said bank said balance of more than $3,300.00, that said bank had so received from plaintiff, as aforesaid, on deposit, and which said money was so held by defendant subject to the order of plaintiff, he drew his check on said bank for the sum of $804.90, payable to the order of the city treasurer of Omaha; that at said date John Rush was the city treasurer of Omaha, and plaintiff delivered said check to said Rush in payment of certain taxes due from the plaintiff to the city of Omaha; that afterwards, on the 23d day of September, the said check was presented to said defendant (Bank of Commerce) for payment, and payment was refused on said check on the pretended excuse that plaintiff had no funds in the bank; and the defendant made no other or different excuse for not honoring and paying said check, and said check was not paid by defendant, and never was, and was returned by said bank to said Rush dishonored and unpaid. Plaintiff says that at the time said check was presented for payment at defendant's bank, and at all times from and after September 20, 1889, plaintiff had on deposit in said bank, subject to his order and to be paid on his checks, more than $3,000.00, and out of which said funds said check should have been paid. Plaintiff says that for the reason that said check was not paid by said defendant when it was so, as aforesaid, presented to said bank for payment, and for no other cause, and without any fault on the part of said plaintiff whatever, the said John Rush filed a complaint with the police court of Omaha, charging said plaintiff therein with the crime of obtaining a tax receipt under false pretenses, and by falsely and feloniously representing to said Rush that he had funds in said defendant's bank subject to be paid on the check of said plaintiff; and, upon said complaint having been so filed, a warrant was issued by the police judge of Omaha for the arrest of said plaintiff, and by authority of said warrant, and upon said complaint, said plaintiff was arrested by the police officers of Omaha, and was taken to the city prison, where said plaintiff was imprisoned with the lowest, filthiest, and most abandoned of human creatures, and plaintiff was kept so imprisoned for a long space of time, to wit, four hours, and was released from his said imprisonment on the condition, only, of giving bail in the sum of $1,200.00 for his appearance at the time fixed by said court for the trial of his case; and plaintiff was compelled to, and did, give said bail, and was thereby released from his said imprisonment. Plaintiff says that when he so gave said check he had, and knew he had, in said bank, subject to his order, a sum of money greatly in excess of the amount of said check, and plaintiff had no notice, or suspicion even, that said check would not be honored and paid; and said check was so given by said plaintiff in good faith, expecting that it would be honored and paid, and said check would have been paid but for the false, wicked, and cruel and illegal act of said defendant, its officers and employes, in refusing to honor and pay the same. Plaintiff says that he was, and for several years last past has been, engaged in the business of keeping an hotel in Omaha, and by so doing formed an extensive acquaintance, in the state of Nebraska and adjoining states, among the traveling public; that plaintiff is also doing an extensive business in various branches of trade, oftentimes requiring an extensive credit to carry on his said business, which, before the occurrence of the events so complained of, he was able to, and did, obtain. Plaintiff says that by reason of the refusal of the said defendant to honor and pay his said check, and his said arrest upon said charge aforesaid, and before the truth or falsity of said charge was known or could be determined, the said charge against him, and the fact of his arrest and imprisonment, was published in the daily papers of Omaha, and sent broadcast over the land in this state and adjoining states, and plaintiff was brought thereby to great and everlasting disgrace and contumely; and plaintiff's character was, by reason of the premises aforesaid, greatly injured, and persons whose confidence he was entitled to and did have before that time, by reason of the acts of said defendant, questioned the integrity of said plaintiff, and refused to give him the financial credit which they had been accustomed to; and, although plaintiff is possessed of a large amount of property over and above all his indebtedness, by reason of the said acts of said defendant his said creditors became clamorous for their pay, and plaintiff has been caused great embarrassment, and has been compelled to make great sacrifices to meet and pay his said creditors,--all of which said state of facts were caused by the said acts of said defendant. Plaintiff says, by reason of said averments and the disgrace brought upon him, he has suffered great distress and pain of mind, and has suffered great loss and damage to his reputation as an honest business man; that he has suffered great pecuniary loss and damage in the manner aforesaid; and he says by reason of the premises he has sustained damages in the sum of $50,000.00.” For the sum last named, judgment was prayed.

The answer admitted that the defendant was a banking corporation, and that plaintiff was a customer of said bank, and that on September 1, 1889, plaintiff had on deposit in said bank the sum of $103.50; and the defendant denied all other allegations of the petition. Affirmatively, the defendant answered that about September 20, 1889, plaintiff drew his check on said bank for the sum of $804.90, payable to John Rush, city treasurer of Omaha, which check was presented for payment on the 23d day of said month, and payment thereof was refused, for the reason that the said bank then held a note of Peter Goos, dated August 15, 1889, due, by its terms, in 90 days from its date, and which it had been agreed, as defendant alleged, should be paid out of the proceeds of a mortgage loan (which, at the date of the note, Goos had in contemplation) whenever said loan should be effected. The defendant further answered that, in accordance with said understanding, the amount of the note aforesaid was charged against plaintiff when said loan was effected, and the unearned interest upon said note was credited to the account of Goos, and that this charge was afterwards assented to by Goos, and that, by reason of charging said note against the account of Goos, there was left an insufficient amount to pay his check afterwards given against said account in favor of the city treasurer. The bank, further...