Community Bank v. Ell

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: TONGUE
• Citation: Community Bank v. Ell, 566 P.2d 903, 279 Or. 245 (Or. 1977)
• Decision Date: 29 June 1977
• Parties: The COMMUNITY BANK, an Oregon Corporation, Appellant, v. Roy ELL, dba Ell Motor Company, Respondent. . Submitted on Respondent's Petition for Rehearing

Page 903

566 P.2d 903

279 Or. 245

The COMMUNITY BANK, an Oregon Corporation, Appellant, v. Roy ELL, dba Ell Motor Company, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Respondent's Petition for Rehearing June 29, 1977 Decided July 20, 1977.

Leslie M. Roberts, Kell, Alterman & Runstein, Portland, for respondent.

No appearance contra.

TONGUE, Justice.

Defendant Ell has petitioned for rehearing, or in the alternative for a modification of our opinion in which we held that a judgment in his favor must be reversed and the case remanded for a new trial. From the arguments in the petition it appears that certain portions of our opinion need clarification.

In discussing the time when Ell could be held to have had notice of the deposit of certain checks we said: "If, however, Ell examined his bank statements, he must have known that Jones made a practice of depositing the loan checks immediately." Ell contends that this statement unreasonably assumes that a depositor examines not only his bank statement but also the processing stamps on his cancelled checks, and that it may be prejudicial to his case upon retrial. We did not mean, by this statement, to hold that Ell must be held to have notice of all of the information which would be obtained by examining every bank processing stamp on the cancelled checks which were returned with his bank statement. We meant only that the statements themselves disclosed a pattern of prompt deposits by Jones and that this fact, together with other evidence discussed in the opinion, indicated that Ell had notice of the dates of the bank deposits in question. Whether Ell, upon retrial, must be held to have notice of the date of a particular deposit will depend upon all of the evidence on that question. The evidence may be different on retrial. The issue is not...