Crisp v. State Bank of Rolla

• Decision Date: 30 November 1915
• Citation: Crisp v. State Bank of Rolla, 32 N.D. 263, 155 N.W. 78 (N.D. 1915)
• Parties: CRISP v. STATE BANK OF ROLLA.
• Court: North Dakota Supreme Court

32 N.D. 263

155 N.W. 78

CRISP

v.STATE BANK OF ROLLA.

Supreme Court of North Dakota.

Nov. 30, 1915.

Syllabus by the Court.

Parties cannot try their causes on one theory and when defeated on that line assume a different position on a motion for a new trial or in the appellate court, and the theory of the case which was adopted by the trial court with the acquiescence of the parties will govern in the appellate court for the purpose of review.

Where a bank check which is sent by mail is intercepted on its way and the indorsement of the payee forged thereon and the check cashed by an intermediary bank, which in turn forwards the check to its correspondent, and through its correspondent to the drawee bank, and collects the amount thereof from such drawee bank and correspondent in order to reimburse itself for the money paid on the forged indorsement, the payee of such check may ratify the delivery to the person who intercepted the check without ratifying the forged indorsement, and may maintain an action of trover against the intermediary bank for the conversion of such check.

There is an exception to the general rule that, where inadmissible evidence is admitted during a trial, the error of its admission is cured by its subsequent withdrawal before the trial closes and by an instruction to the jury to disregard it, and that is that where the evidence thus admitted is so impressive that, in the opinion of the appellate court, its effect was not removed from the minds of the jury by its subsequent withdrawal or by an instruction of the court to disregard it, the judgment will be reversed on account of its admission, and a new trial will be granted.

Where in a suit against a bank by the payee of a check for the conversion of such check and the wrongful payment of it to the husband of such payee, and the questions at issue are whether the plaintiff ever received the check or the money or ever authorized the indorsement of her name upon it by her husband and the payment to such husband of the amount thereof, a letter which is written to a lawyer of the plaintiff, and who presumably sent the check, and which letter was written over a year after the date of the cashing of the check, and in which the plaintiff states: “I received your letter this evening, * * * and was horrified to hear that I received my money a year ago, $257.75. Pray, for God's sake tell me to whom it was sent. I swear before God I never received one cent”-is a self-serving declaration, and not a part of the res gestæ, and where such letter is read to the jury, the error and prejudice of its introduction is not cured by a subsequent instruction which directs the jury to disregard it.

Appeal from District Court, Rolette County; Buttz, Judge.

Action by Mary J. Crisp against the State Bank of Rolla, a corporation. From judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

This is an action for the conversion by the defendant of a certain bank check which was drawn on the Stockman's National Bank of Montana, the complaint alleging that:

“On or about the 2d day of April, 1905, the plaintiff was the owner and lawfully entitled to the possession ‘thereof,’ and that thereafter and on or about the 2d day of May, the defendant wrongfully and unlawfully obtained possession thereof and thereupon wrongfully, and unlawfully appropriated and converted the same to its own use.”

The answer denied generally all of the allegations of the complaint, excepting such as were admitted and qualified, its qualification being that:

“On or about the 22d day of April, 1905, it cashed a certain check for the plaintiff, which said certain check was referred to in plaintiff's complaint and described therein in words and figures, but the defendant alleges that said bank check was cashed for the plaintiff by the defendant at the plaintiff's special instance and request, and the money paid to the plaintiff and the plaintiff's husband, and that said bank check was indorsed and made payable to the defendant as a receipt for said money, at the plaintiff's special instance and request, by indorsement made thereon by the plaintiff's husband at the plaintiff's special instance and request, and by her authority,” etc.

To this answer the plaintiff replied denying the allegation of the payment by authority, but admitting and adding:

“That the said Charles Crisp [the husband] indorsed said check, but such indorsement was wholly without authority from the plaintiff and without her knowledge and consent, and without any express custom on plaintiff's part.”

The plaintiff introduced evidence tending to show that the check was sent her by the administrator of her former husband's estate, but without direct authorization, and that its sending was not known to her until a year after it had been cashed by the defendant bank, and which bank was an intermediary merely; the check being drawn on the Stockman's National Bank of Montana. She claims and the evidence tends to show that her present husband intercepted the letter and indorsed her name thereon without her authority and had the same cashed by the defendant bank, and that she has never received any of the proceeds thereof. Evidence, on the other hand, was introduced by the defendant bank concerning a visit by an officer of such bank to the plaintiff before the check was paid and of her authorization of such payment. This testimony, however, was emphatically denied by the plaintiff.

The case was tried upon the theory that the only issue in the case was whether or not the payment to and indorsement by the husband was authorized by the wife. No exceptions appear to have been taken to the instructions, nor are they with one exception, incorporated in the record which is before us. From a judgment in favor of the plaintiff, the defendant appeals.

Christianson, J., dissenting.

H. E. Plymat, of Rolla (Cowan & Adamson and H. S. Blood, all of Devils Lake, of counsel), for appellant. Middaugh, Cuthbert, Smythe & Hunt, of Devils Lake, for respondent.

BRUCE, J. (after stating the facts as above).

This opinion is written after a rehearing. The principal ground for a reversal which is urged by the defendant in this case, and which was apparently urged upon the motion for a new trial, is that the evidence does not show that the check came into the possession of the plaintiff before the time of the alleged conversion, and that therefore the action of trover will not lie. It is contended that, no delivery having been made, the check at such time was the property of the maker, and not of plaintiff, and that the plaintiff therefore has no ground of complaint, as the liability of such maker to her is still existing, the debt never having been paid. This objection, however, comes too late. The case was twice tried, and the point does not appear to have been raised until the motion for a new trial was made in the second action.

The delivery of the check to the plaintiff or to her agent and her right to the possession thereof at the time of its payment by the defendant bank is admitted by the answer, for, although the answer denies the allegations of the complaint, “except as herein expressly admitted, qualified, or explained,” it expressly alleges that:

The check “was cashed for the plaintiff at the plaintiff's special instance and request, and the money paid to the plaintiff or to the plaintiff's husband, and that said check was indorsed and made payable to the defendant as a receipt for said money at plaintiff's special instance and request, with indorsement made thereon by plaintiff's husband at plaintiff's special instance and request and by her authority, and that the defendant cashed said check by virtue of the authority given by the plaintiff to the plaintiff's husband to indorse said check and to receive the money thereon for her use and benefit, and that the defendant cashed said check for the plaintiff as aforesaid in the regular course of business and under an express custom on the part of the plaintiff giving her husband authority to generally cash and indorse her checks for her and to receive the money thereon.”

The question of ownership of the check and the right to the possession thereof at the time of the alleged conversion was and is therefore expressly eliminated from the case, and the only question at issue, and in fact the only question that was tried in the district court, was whether the husband had the right to indorse the same; that is to say, whether such indorsement was made with the consent of the wife.

[1] It is now too late to urge that the check had not been received by the plaintiff, or that she was not entitled to the possession thereof, and that therefore the cause of action would not lie. Cushing v. Pires, 124 Cal. 663, 57 Pac. 572;McDougald v. Hulet, 132 Cal. 154, 64 Pac. 278. It is well established, indeed, that “parties cannot elect to try their causes on one theory in the lower court, and, when defeated on that line, assume a different position in the appellate court” (3 Cyc. 243), and that “the theory of the case which was adopted by the trial court with the acquiescence of the parties will govern in the appellate court for the purpose of review” (21 Enc. of Pl. & Pr. 664; Marshall v. Andrews & Gage, 8 N. D. 364, 79 N. W. 851).

[2] It is also quite clear that, if a delivery to the plaintiff was in fact made or must be assumed, the action of trover will lie, since the defendant bank, in order to reimburse itself for the payment which was made to the husband transmitted the check and collected the same from its correspondents, who in turn collected it from the drawee bank. So, too. it would seem that a person to whom a check is sent by mail, and which check is intercepted and cashed with a fraudulent indorsement thereon by a third party, may ratify the delivery without ratifying the forged indorsement.

“This brings us to the question,” says Mr. Justice Lurton, of the Supreme Court of the...