Collins v. Union & Farmers' Bank

• Decision Date: 07 February 1916
• Docket Number: 17240
• Citation: 110 Miss. 506,70 So. 581
• Parties: COLLINS v. UNION AND FARMERS' BANK
• Court: Mississippi Supreme Court

70 So. 581

110 Miss. 506

COLLINS v. UNION AND FARMERS' BANK

No. 17240

Supreme Court of Mississippi

February 7, 1916

APPEAL from the circuit court of Jones county. HON. PAUL B. JOHNSON Judge.

Suit by A. B. Collins against the Union & Farmers' Bank. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Cause reversed and remanded.

R. E Halsell, for appellant.

We think the judgment in this case ought to have been in favor of Collins. The defendant failed to prove, according to our judgment, by a preponderance of the evidence, that the check bore the signature of Collins. Collins denied the signing of the check, and we think the bank failed to overcome his evidence. We further think that all of the instructions given to the defendant were clearly wrong, and not the law, and served to prejudice the jury against Collins. Instruction number 3 reads as follows:

"The court instructs the jury for the defendant that if they believe from the evidence that the defendant bank mailed to the plaintiff the sum of sixty-five cents, in full settlement of plaintiff's account with said bank, and that said sum was accompanied by a letter of the cashier of defendant bank stating that said sum closed the account, and that said letter and said sum of sixty-five cents were received by plaintiff, and accepted by him, and retained by him, then that was a final settlement of the account, and the plaintiff is not entitled to recover in this action."

This instruction ought not to have been allowed by the court for the reason the instruction fails to show the date of the letter claimed to have been mailed the plaintiff, and there was no proper testimony to prove the mailing of such a letter. In addition to this the instruction is clearly wrong and should not have been given for the reason the letter and statement were claimed to have been mailed on September 1, 1911, Collins living fourteen or fifteen miles in the country. Our recollection is defendant testified it registered this letter to Collins, but it produced nothing to show it had done such a thing. The court will bear in mind Collins filed his declaration in this case on the 23rd day of August, 1911, and service was had on the bank on the 25th day of August, 1911, so this statement, and this letter sent September 1, 1911, occurs to us to have been offered to manufacture testimony, and the instruction should not have been allowed because the statement was mailed, if it was mailed, after suit had been filed and service had on the defendant. Anyway, to admit such testimony in a case of this sort the proof ought to be very clear and beyond dispute, because it opens the door for a defendant to manufacture, and make for himself testimony. It is so easy for the bank to say it mailed the statement, and sent the money, and produce a copy of the letter. This instruction alone must have influenced the jury, and caused them to find against Collins. For this reason we think the case ought to be reversed.

Street & Street, for appellee.

The right result was reached in this case, whether it be viewed from a legal standpoint or as a question of fact. It is right from a legal standpoint because:

(A) Under the state of the pleadings the bank was entitled to win, because it pleaded the nine hundred dollar check as a defense to the action and averred the signature to be genuine. It was not proper to have allowed Collins to deny that he signed the check for the reason that he did not deny by plea verified by oath that he signed the check. Code 1906, section 1974.

(B) He retained the check and is estopped from claiming it to be a forgery at this late day, after the bank had lost the opportunity of holding the endorsers. Zane on Banks and Banking, page 266; 14 So. 335; 27 L. R. A. 426; 17 Am. St. Rep. 889. He must return the check. 47 N.E. 1009; 114 Am. St. Rep. 595.

(C) No written demand was made on the bank before suit for the payment of the nine hundred dollars and banks are prohibited from paying out money except on written demand.

As stated before, the issue in the case was presented squarely to the jury, and no authorities are cited in support of the contentions made by appellant, and if there is any error in the instructions some authority ought to be produced to show it; but, the verdict of the jury and the judgment are right on the facts. In fact, it is difficult to see how the jury could have reached any other conclusion than that the check is not a forgery, and we submit that the judgment of the circuit court ought to be affirmed.

OPINION

POTTER, J.

This is an appeal from the circuit court of the Second district of Jones county. Appellant, plaintiff in the court below, filed his suit against the Union & Farmers' Bank, a banking corporation in business at Sandersville, in said district and county, for nine hundred dollars for money had and received from the plaintiff. The general issue was pleaded by the defendant with a special plea setting up in defense of the suit a written statement of the plaintiff's account at the bank and alleging that the account was correct. The account rendered purported to set out all of the credits and debits of the bank with the plaintiff from October 20, 1910, the time when the account was started, until May 11, 1911, when it was alleged that the plaintiff had a balance of sixty-five cents in the bank. The checks are not set out in the pleading, except the date and amount of each check.

The defendant pleaded in its special plea that on September 1 1911, it sent to the plaintiff by mail, postage paid and properly addressed to him at his post office, the sum of sixty-five cents, in full settlement of the balance due by defendant and that on the same date it wrote plaintiff a letter, inclosing the sixty-five cents and stating that the amount closed the account. The copy of the letter was made an exhibit to the special plea. The defendant further alleged that this sum was retained and accepted by the plaintiff in full settlement of his account. The plaintiff filed a replication to defendant's special plea, to which the defendant filed a demurrer, which was sustained, and leave granted plaintiff to amend. Whereupon plaintiff filed his amended response to the defendant's special plea, admitting that the account as set out by defendant in its special plea was correct, except as to a check for nine hundred dollars dated at Muskogee, Oklahoma, December 12, 1910, a copy of which was made an exhibit to plaintiff's response. In this response the plaintiff charged that the check for nine hundred dollars was a forgery, and...