Citizens' Bank of Humphrey v. Fromholz

• Citation: 89 N.W. 775,64 Neb. 284
• Decision Date: 19 March 1902
• Docket Number: 11,358
• Parties: CITIZENS' BANK OF HUMPHREY v. FREDERICK FROMHOLZ
• Court: Nebraska Supreme Court

89 N.W. 775

64 Neb. 284

CITIZENS' BANK OF HUMPHREY v. FREDERICK FROMHOLZ

No. 11,358

Supreme Court of Nebraska

March 19, 1902

ERROR from the district court for Platte county. Tried below before HOLLENBECK, J. Affirmed.

AFFIRMED.

McAllister & Cornelius, for plaintiff in error.

Talbot & Allen and Julius S. Dittmar, contra.

OLDHAM C. BARNES and POUND, CC. concur.

OPINION

OLDHAM, C.

This was an action by a depositor against the Citizens' Bank of Humphrey, Nebraska, to recover back the sum of $ 578.20 alleged to have been erroneously charged to plaintiff's account by the defendant bank on the 30th day of May, 1893. The suit was not filed until the 24th day of September, 1898. Plaintiff, however, alleged in his petition that he did not discover the mistake in the overcharge of his account until September, 1898. The defendant bank answered plaintiff's petition with a general denial and a plea of the statute of limitations. Plaintiff replied to this answer with a general denial. There was a trial of the issues thus joined to a jury and a verdict for plaintiff. Judgment was entered on the verdict, and defendant brings error to this court.

The facts in this case, as shown by the bill of exceptions, are that the plaintiff in this cause of action was a farmer living near Humphrey, and was a customer of the defendant bank for about four years. It appears that in January, 1893 he was considerably indebted to the bank on notes which the bank held against him, and also on some overdrafts; that at the time he was preparing to remove to the territory of Oklahoma; and that he came into the bank and had a settlement for his notes and overdraft, and paid them by secured notes which he executed for that purpose. It also appears that plaintiff removed to Oklahoma, and that he left some notes for collection with the defendant bank, and that he also authorized the president and cashier of the defendant bank to negotiate a sale of his lands in Platte county, Nebraska. It appears that this sale was negotiated, and the proceeds of the sale were placed to his credit in the defendant bank by the cashier, and that the notes that he owed to the bank were taken out of the proceeds of this sale. It also clearly appears that the bank charged his account with a note of $ 500, and interest thereon, which all amounted to $ 578.20, and that this charge was made on the 30th day of May, 1893, and that this was one of the notes that had been settled for by plaintiff in January, 1893,--so that the question of the mistake in the account was clearly and unmistakably proved. The bank did not introduce its books in evidence and appeared to rely solely on the statute of limitations as a defense. It seemed, by inference, to have contended that plaintiff's account at the bank was kept by the president and cashier, E. A. Stockslager, as agent for plaintiff, and that the bank, as such, had no interest in this matter. To sustain this theory, it contends that Stockslager collected plaintiff's money and sold his farm and made the deposit for plaintiff, and that the checks which plaintiff drew against his account were mailed from Oklahoma to Stockslager. This may be, and was, true; but Stockslager was the president and managing officer of the defendant bank and when he collected notes for plaintiff he credited plaintiff with the collection on the books of the bank. When he received a check from plaintiff, it was paid out of the money plaintiff had on deposit in the bank and charged to him on the books of the bank. In all these transactions Stockslager was acting strictly within the line of the duties devolving upon him as president and cashier of the defendant bank, and...