Bedell v. Harbine Bank of Fairbury
| Decision Date | 19 June 1901 |
| Docket Number | 10,044 |
| Citation | 86 N.W. 1060,62 Neb. 339 |
| Parties | F. F. BEDELL v. HARBINE BANK OF FAIRBURY |
| Court | Nebraska Supreme Court |
ERROR from the district court for Jefferson county. Tried below before LETTON, J. Reversed.
REVERSED.
E. H Hinshaw, for plaintiff in error.
W. H Barnes, contra.
AMES C. DUFFIE and ALBERT, CC., concur.
On Saturday, the 26th day of October, the plaintiff in error, Bedell, was the payee named in a check drawn by C. F. Dawson, on the Steele City Bank, in this state, and indorsed and delivered it to the defendant in error, the Harbine Bank of Fairbury, Nebraska. It is testified by the cashier of the latter bank, with whom the business was done, but denied by Bedell, that at the time of the transaction the latter told the former, in substance, that the drawer, Dawson, had not at present a sufficient deposit for the payment of the check and that he, Bedell, preferred that it should not be presently presented for payment, and that to this the cashier replied, it then being late in the day, that on the following Monday he would send the check for collection to the First National Bank of St. Joseph, Missouri, by which it would be forwarded to the Steele City Bank, the drawee, for collection, so that several days would necessarily elapse before its presentment for collection. It is not disputed that the check was, on Monday, sent to the St. Joseph bank and on the next day sent by it to the Steele City Bank, which latter received it on Wednesday, the 30th, and retained it until after Monday, November 4, when the Steele City Bank ceased to do business and went into the possession of an official representing the state board of banking. So far as it is shown by the record, the check has never been paid. At the time the check was indorsed to the Harbine Bank Bedell received credit for its amount, but it is not denied that the indorsement was for collection only, and that the services of the indorsee were to be, and were, rendered without compensation. On Wednesday, the 30th of October, and again on Saturday, the 2d of November, Bedell was told by the cashier that nothing had been heard from the check and that he presumed, therefore, that it had been paid, and on the latter date Bedell was permitted to withdraw the amount from the Harbine bank. On Monday, November 4, Bedell removed to Kansas City, and he seems never to have been formally notified of the non-payment of the check, nor to have learned of that fact until several days later. This action was brought by the Harbine bank against Bedell to recover the amount of the check as having been paid to him without consideration, and resulted, upon a trial before Judge Letton and a jury, sitting in the district court for Pawnee county, in a verdict and judgment for the plaintiff. Bedell prosecutes a petition in error in this court.
The issues, as above outlined, were fairly, and somewhat more fully than here, stated to the jury by instructions, but they were instructed that although they should find that the agreement was made as testified to by the cashier, yet, if they should further find that there was negligence by the St Joseph bank in presenting the check for payment, or by the Harbine bank in notifying Bedell as soon as it had itself received notice of non-payment, the latter bank could not recover. There is no evidence that the Harbine bank ever received formal notice of non-payment. These instructions were, in this aspect of the case, at least as favorable to the plaintiff in error as the circumstances of the case justified. If the jury...
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