Bridge Creek Drainage Dist. v. Webster

• Decision Date: 20 November 1933
• Docket Number: 30843
• Court: Mississippi Supreme Court
• Parties: BRIDGE CREEK DRAINAGE DIST. v. WEBSTER

150 So. 915

168 Miss. 115

BRIDGE CREEK DRAINAGE DIST. v. WEBSTER

No. 30843

Supreme Court of Mississippi

November 20, 1933

Division A

1. BANKS AND BANKING.

Drainage district, sued by receiver of bank on note, held entitled to set off money deposited and wrongfully paid out by bank.

2 ESTOPPEL.

Estoppel operates only in favor of one who, in reliance on act representation or silence of another, changes his position to his prejudice.

3. ACCOUNT STATED. Drainage district, although having received periodical statements of bank account between time of wrongful payment from its account and closing of bank, held not estopped to recover money erroneously paid, where bank was not prejudicial (Code 1906, sections 1704, 1708; Code 1930, section 4357).

Facts disclosed that depository bank wrongfully and erroneously paid out money of drainage district for bonds of a separate and independent drainage district, and without any certificate from commissioners of depositor district, and over the protest of its attorney. Furthermore, it was not shown that the bonds did not remain under the control and ownership of the bank, and that the district which issued the bonds in question was not able to pay them.

4. BILLS AND NOTES.

Under note providing for reasonable attorney's fees, testimony of attorney that fifteen per cent. was reasonable held persuasive, but not conclusive, as respects peremptory instruction.

5. APPEAL AND ERROR.

Where appellant was entitled to peremptory instruction as to setoff, but did not request it at trial, Supreme Court cannot enter judgment.

HON THOS. E. PEGRAM, Judge.

APPEAL from circuit court of Alcorn county, HON. THOS. E. PERGRAM, Judge.

Action by E. M. Webster, receiver of the First National Bank of Corinth, against the Bridge Creek Drainage District. From a judgment in favor of the plaintiff, the defendant appeals. Reversed and cause remanded.

Reversed and remanded.

Ely B. Mitchell, of Corinth, for appellant.

When the sheriff and tax collector of Alcorn county, Mississippi, collected the drainage tax from the landowners in Bridge Creek drainage district of Alcorn and Tippah counties, Mississippi, and placed the funds in the First National Bank, the depository of said district, the relation between the bank and the district was simply one of debtor and creditor.

Moreland et al. v. Peoples Bank of Waynesboro, 114 Miss. 203.

The cashier was told not to pay the bonds and interest coupons out of the funds of Bridge Creek drainage district of Alcorn and Tippah counties, Mississippi, and that if he did the bank would have to bear the loss. This payment was gross negligence on the part of the bank.

3 R. C. L., sec. 168, page 538; Leather Manufacturers National Bank v. Morogan, 117 U.S. 96, 29 L.Ed. 811; National Dredging Co. v. Farmers Bank (Del.), 6 Pen. 580; 130 A. S. R. 158; Critten v. Chemical National Blank, 171 N.Y. 219, 57 L. R. A. 529; First National Bank of Richmond, Va., v. Richmond Electric Co., 106 Va. 347.

All unauthorized debits upon the account of a depositor are made by a bank at its peril.

Janin v. London and S. F. Bank, 14 L. R. A. 320.

A bank receiving money to be checked out assumes the duty of paying, it out only as the depositor shall order, and if it pays out money otherwise than according to such order, it is liable to the depositor for the amount so paid.

Tolman v. American National Bank, 22 R. I. 462, 59 L. R. A. 877; 7 C. J., sec. 395, p. 676; Havana Central R. Co. v. Central Trust Co., 214 F. 546; Hartford v. Greenwich Bank, 157 A.D. 448, 215 N.Y. 726; White v. Springfield Saving Inst., 134 Mass. 232; Murphy v. Metropolitan National Bank, 191 Mass. 159, 114 A. S. R. 596; Kuenster v. Woodhouse, 101 Wis. 216; 13 R. C. L., sec. 171, p. 542.

Where a check drawn by a depositor was paid to the wrong person the endorsement having been forged, and the depositor without objection received statements from the bank showing that payment, he is not estopped from suing the bank, as estoppel in pais operates only in favor of one who relying upon the acts of another has changed his position.

Masonic Grand Lodge v. First National Bank of Columbus (Miss.), 55 So. 408; Thomas v. First National Bank of Gulfport, 101 Miss. 500; 3 R. C. L., sec. 170, p. 540; Union Tool Co. v. Farmers & Merchants National Bank, 28 A. L. R. 417.

The bank was guilty of the grossest kind of negligence, and it is too late for the bank to now say that the drainage district is estopped because it did not notify the bank of the mistake or error when it received its cancelled bonds and interest coupons and pay certificates.

Amount of attorney's fee under note providing for payment of reasonable fee for its collection must be determined by the jury.

Capital Loan & Investment Co. v. Benson, 146 Miss. 607.

In an action by an attorney to recover the reasonable value of legal services rendered by him, the opinion of attorneys at law of the reasonable value thereof is admissible as evidence but is not conclusive of the value of such services, that being a question which the jury should be permitted to decide from all the evidence in the case relative thereto.

Capital Loan & Investment Co. v. Benson, 146. Miss. 612; Humphreys County v. Cashin, 128 Miss. 236.

C. L. Sumners, of Corinth, for appellee.

The trial court committed no error in instructing the jury to find for the plaintiff and against the appellant on his plea for a set-off of two hundred eighty-four dollars.

It is submitted that the court committed no error in directing verdict on the set-off, for the reason that the bank's statement submitted to appellant from time to time and year to year, together with appellant's note to the bank, constitute an account stated between the parties as to all prior transactions.

Appellant cites authority that the relationship between the bank and the depositors is simply that of debtor and creditor, which the appellee admits to be the rule. Considering this relationship it is more strongly urged that the note executed by the appellant to the appellee, together with the bank statement sent to the appellant, constituted an account stated, and that the appellant cannot now go behind the note and the statements and bring up an alleged error of some five years past.

Stebbins v. Niles, 25 Miss. 267; Reinhart v. Hines, 51 Miss. 344; Anding v. Leving, 57 Miss. 51; Gross v. Jones, 89 Miss. 44, 42 So. 802.

An account which has been rendered and to which no objection has been made within a reasonable time is to be regarded as admitted by the person charged as prima facie correct. This wholesale presumption rests on the principle which is the foundation of evidence of his kind, namely, that the silence of the receiver of the account warrants the inference of an admission of its correctness.

1 R. C. L. 213, sec. 12; Masonic Grand Lodge v. First National Bank of Columbus, 55 So. 408.

It is not error to instruct the jury as to the amount of attorney's fee when the evidence is direct, conclusive and uncontradicted and when the jury could reach no other verdict from the evidence.

Cashin case, 128 Miss. 248; Derzis v. Cox (Ala.), 137 So. 306.

Where the facts are undisputed and only one reasonable, inference can be drawn a, peremptory instruction is proper.

Great Southern Life Ins. v. Campbell, 148 Miss. 173, 114 So. 262; Carrere v. Johnson, 149 Miss. 42, 115 So. 196; Board of Miss. Levee Comrs. v. Montgomery, 145 Miss. 578, 110 So. 845.

Argued orally by Ely B. Mitchell, for appellant.

OPINION

McGowen, J.

The appellee, Webster, receiver of the First National Bank of Corinth, Mississippi, brought an action at law against the appellant, Bridge Creek drainage district of Alcorn and Tippah comities, seeking to recover the amount of a note, executed by the appellant in favor of the First National Bank of Corinth, Mississippi.

The appellant sought to set off or counterclaim as against the note the sum of two hundred eighty-four dollars, alleged to have been paid out of the funds on deposit for appellant by appellee for bonds of the Bridge Creek swamp land drainage district, an entirely different entity, and that said funds bad been so paid by said bank without authority, and without any sort of certificate from the commissioners of the appellant district over the protest of its attorney; and the bank bad refused to replace to, its credit the amount of said payment on the demand of the appellant drainage district.

The evidence showed beyond dispute that two hundred eighty-four dollars of the appellant's funds had been paid out without authority and with no sort of written order or otherwise on the part of the depositor, for bonds and interest of an entirely different corporation in which the appellant bad no interest. This payment of two hundred eighty-four dollars was made by the bank on December 21, 1928. There was evidence that the bank from time to time had sent statements of accounts between it and the appellant drainage...