Commercial State Bank of Genoa v. Rowley

• Decision Date: 19 March 1902
• Citation: 89 N.W. 765,2 Neb. [Unof.] 645
• Parties: COMMERCIAL STATE BANK OF GENOA v. ROWLEY.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 645

89 N.W. 765

COMMERCIAL STATE BANK OF GENOA

v.ROWLEY.

Supreme Court of Nebraska.

March 19, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Nanc county; Albert, Judge.

“Not to be officially reported.”

Action by S. R. Rowley against the Commercial State Bank of Genoa. Judgment for plaintiff, and defendant brings error. Affirmed.M. V. Moudy and W. L. Rose, for plaintiff in error.

W. S. Critchfield and Albert Thompson, for defendant in error.

OLDHAM, C.

On the 11th day of March, 1896, the firm of Greek & Wilbur, a copartnership engaged in business in Genoa, Nance county, Neb., delivered to George White, “who resided at Genoa,” the following check on the Commercial State Bank of Genoa: “No. 880. Genoa, Nebraska, 3/11, 1896. Commercial State Bank, Successor to Bank of Genoa, pay to the order of Geo. White four hundred twenty-five dollars for bal. on 71 cattle. Greek & Wilbur. $425.00. Due May 1, 1896.” After the receipt of this check, George White removed to the county of Nodaway, in the state of Missouri, and, as the evidence shows, made a purchase of lands in Missouri for his wife, and in part payment of the purchase price of the lands indorsed this check to S. R. Rowley, the plaintiff in the court below. This check was indorsed to Rowley before maturity, and by Rowley was indorsed to the First National Bank of Maryville, Mo., and was transmitted for collection by the First National Bank of Maryville to the defendant, the Commercial State Bank of Genoa, on the 20th day of April, 1896, and 10 days before its maturity. This check was paid by the makers at the Commercial State Bank of Genoa at the time of its maturity on the 1st day of May, 1896. On the day that this check matured and was paid the Commercial State Bank of Genoa was summoned as garnishee in a proceeding in garnishment in aid of execution on a judgment rendered by a justice of the peace of Nance county in favor of George Baer and against George White for $200 and costs; and subsequently, on the 30th day of May, 1896, the defendant bank was again summoned as garnishee in an attachment proceeding instituted by Henry Seyfer and against George White for $199, alleged to be due on two promissory notes. The defendant bank answered as garnishee in each of these proceedings, and in its answer set up the facts with reference to the check. Notwithstanding this answer, the justice of the peace entered judgment against the bank as garnishee in each of the cases. These two judgments aggregated the full amount of the check in suit. Because of these garnishment proceedings the defendant bank refused to remit the proceeds of the check to the First National Bank of Maryville, and subsequently paid the proceeds of the check into the justice's court, in discharge of the two judgments rendered against it as garnishee. The National Bank of Maryville charged the check back to the account of plaintiff, Rowley, at that bank, and Rowley thereupon instituted suit on this check against the Commercial State Bank of Genoa in the county court of Nance county. An appeal was taken from the judgment of the county court to the district court of Nance county, where the issues above set forth were properly pleaded, and a jury waived, and trial had to the court. Judgment was rendered for the plaintiff, and defendant brings error to this court.

The first contention of counsel for the defendant bank to which our attention is directed is that the evidence in the case tended to show that plaintiff, Rowley, had acted as agent for one Busby in the sale of the lands to White, and that he took the check indorsed to him by White as agent, and consequently that Busby, and not Rowley, is the real party in interest in this suit. While it is true that plaintiff, Rowley, admitted that he was acting as agent for Busby in the sale of the land to White, it is also true that he testified that he accepted this check as indorsee as so much of a cash payment on the land, and accounted to Busby for it as so much cash. Aside from this,...