Bierce v. State Nat. Bank of Memphis
| Decision Date | 14 May 1912 |
| Docket Number | Case Number: 616 |
| Citation | 1912 OK 324,127 P. 856,33 Okla. 776 |
| Parties | BIERCE v. STATE NAT. BANK OF MEMPHIS, TENN. |
| Court | Oklahoma Supreme Court |
¶0 BILLS AND NOTES--Appeal and Error--"Payment" by Indorser--Effect--Action by Indorsee--Real Party in Interest--Pleading--Affirmance of Judgment. Where, in response to a telegram from a bank, the indorsee of his note, B. telegraphs the bank to have P., the indorser, take it up and draw on him with note attached, and where the bank pursuant thereto sent said telegram to P., who, acting thereon, sends to the bank the check of G. drawn on funds in said bank, together with a sight draft drawn on B. in favor of said bank for the amount of said note and interest, directing the maker, on demand, to pay to said bank said amount, "note and telegram March 2d attached with exchange," and where said bank accepts said check, charges it to the account. of G., credits its "bills receivable" with the amount, stamps on its "discount ledger" opposite the entry of the note "March 2, 1906," as the date "when paid," charges said draft on the remittance ledger to its correspondent bank and forwards same with note attached for collection, held that, by so accepting and charging said check, said note was paid by P. as indorser. Held, further, that on a return of the note unpaid by the maker, the bank, being the legal owner and holder thereof, was the real party in interest and could sue thereon and recover the full amount of said note from the maker. Held, further, that where a cause of action is tried upon a bad plea of confession and avoidance, and an immaterial issue found in favor of the plaintiff, the cause will not be reversed for a repleader, but the judgment will be affirmed where the petition states facts sufficient to constitute a cause of action.
Error from District Court, Oklahoma County; D. A. Richardson, Assigned Judge.
Action by the State National Bank of Memphis, Tenn., against William W. Bierce. Judgment for plaintiff, and defendant brings error. Affirmed.
Flynn, Ames & Chambers, for plaintiff in error.
Harris & Wilson, for defendant in error.
¶1 On April 2, 1906, the State National Bank of Memphis, Tenn., defendant in error, sued W. W. Bierce, plaintiff in error, in the district court of Oklahoma county, stating in its petition a cause of action against him on a certain promissory note for $ 4,333.34, dated March 2, 1901, due five years after date, payable to the order of James K. Porter, and by him indorsed to said bank. Among other things, Bierce pleaded payment by Porter as indorser, since which time, he says, the note belonged to him; that the bank was not the owner of the note and not the real party in interest. There was trial to a jury and judgment for plaintiff. Defendant brings the case here and assigns for error that the judgment is contrary to law in that the undisputed evidence proves payment. There being no dispute about the facts, the question is one of law for the court. On this point the testimony discloses that on March 2, 1906, the note sued on was due, and, being unpaid, the bank sent Bierce this telegram:
And received from him this answer:
¶2 That pursuant thereto the bank thereupon sent said answer to Porter, who, being a director of said bank and president of the Gayoso Oil Works there in Memphis, sent back to the bank the check of said company drawn on said bank for the amount of said note and interest, in all $ 5,416.68, together with his draft:
¶3 That upon receipt thereof said bank accepted said check, charged it to the account of said company, credited the "bills receivable" account with a like amount, and pursuant to its deposit ticket of that day, which referred to the drafts as "checks, $ 5,416.86," on the next day credited said company with the amount thereof and sent said draft, with the note attached, to Oklahoma for collection, through the New England National Bank of Kansas City, to whose account it was that day charged; that, when said check and draft were received by plaintiff, said note stood charged on its discount ledger in the account "notes discounted," at which time, under the column "when paid," the bank caused to be stamped on the line containing the entry of the note "March 2, 1906," and said note taken from said account and charged as stated. When, in response to said draft, Bierce wired:
--this suit was brought.
¶4 While it is by plaintiff conceded, in effect, that the entries of charge and discharge made on its books at precisely the same time and in precisely the same manner show payment by check in precisely the same way by Porter of a certain individual note for the same amount due from him to the bank, it is insisted that the check of the oil company for the exact amount of the note sued, sent by Porter in this instance, did not pay this note, but that, when the bank received it, charged it to the account of said company, credited the "bills receivable" account with the amount, opposite the entry of said note and in the column "when paid" stamped "March 2, 1906," and, pursuant to the directions of Porter, sent the note off for collection attached to a draft on Bierce--that all of this indicated only that the note was taken out of "notes discounted" and placed in the remittance account for collection, and was not paid by Porter. Not so. When the bank accepted the check of the oil company and charged it to said company's account, which it did "March 2, 1906," the note sued on was paid by Porter. This the cashier was forced, in effect, to concede when he testified:
"
¶5 But, whether conceded or not, the legal effect of accepting the check and charging it to the account upon which it was drawn operated as payment of said note. When the bank received instructions from Bierce to "have Porter take it up and draw on me with note attached," it could have ignored the request. It did not do so, but sought therewith to comply. Pursuant thereto it sent said telegram to Porter, who, in turn, could have ignored it, but did not, and both co-operated to comply with the request. To this end, and for no purpose other than to carry it out, Porter sent to the bank the check of the oil company drawn for the precise amount of the note and interest with this draft:
¶6 Nothing could be plainer than that in so doing Porter thereby impliedly requested the bank to accept the check in payment, charge the same to the account of the oil company, discharge the note from its then account, attach it and Bierce's telegram to said draft, and send the same off for collection. The books of the bank show that said check was by it accepted in that it was charged to the company's account. This was, in effect, as if Porter had presented to the bank the check in person, received the money on it, and paid it back again in liquidation of the note. Or as stated in 2 Morse on Banks & Banking, sec. 451:
¶7 Or as stated in 30 Cyc. 1207:
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