Duncan v. Nat'l Bank of Decatur

• Decision Date: 17 April 1936
• Docket Number: Gen. No. 8977.
• Citation: 285 Ill.App. 305,1 N.E.2d 902
• Parties: DUNCAN v. NATIONAL BANK OF DECATUR.
• Court: United States Appellate Court of Illinois

285 Ill.App. 305

1 N.E.2d 902

DUNCAN

v.NATIONAL BANK OF DECATUR.

Gen. No. 8977.

Appellate Court of Illinois, Third District.

April 17, 1936.

Appeal from Circuit Court, Macon County; Charles Y. Miller, Judge.

Action by J. T. Duncan against the National Bank of Decatur. Judgment/for defendant, and plaintiff appeals.

Appeal dismissed. Martin & Hutchens, of Decatur (Clive C. Martin and Ivan J. Hutchens, both of Decatur, of counsel), for appellant.

Redmon, Redmon & Bodman, of Decatur (William E. Redmon, Roscoe W. Redmon, and W. S. Bodman, all of Decatur, of counsel), for appellee.

FULTON, Justice.

The appellant, J. T. Duncan, was a resident of the city of Decatur, having no particular profession or occupation outside of looking after and caring for his own property. On May 11, 1933, a man, representing his name to be Marshall, called upon the appellant at his home. The appellant and Marshall entered into a business transaction for the exchange of certain securities. As a part of the contract, the appellant delivered to Marshall certain securities and two checks representing the difference in value between the securities to be exchanged. In return for the securities and checks received from the appellant, Marshall, or the company he claimed to represent, was to send appellant certain other securities. These securities were never received by appellant.

The two checks in question were signed by the appellant and made payable to L. H. Van Leer. The appellant testified that he did not know whether or not there was such a person, but that he did make the checks. Both of these checks were presented to the appellee, the National Bank of Decatur, where they were certified by the bank on May 13, 1933, as to the amount and as to the signature of the maker only. The testimony does not disclose who presented the checks for certification, but they were not presented by appellant. One check was later cashed at the Drake Hotel in Chicago, after having been indorsed with the names, L. H. Van Leer and H. R. Marshall. It was paid by appellee on May 16, 1933, coming to the appellee from the First National Bank of Chicago, Ill.

The other check was cashed at the Whitehall Hotel in Chicago after having been indorsed with the names L. H. Van Leer and A. G. Saunders. It was sent to the appellee bank, passing through the Lake Shore Trust & Savings Bank, the First National Bank of Chicago, and the Federal Reserve Bank. These two checks were paid by appellee and aggregated the sum of $1,002 and were then regularly deducted from appellant's account.

On May 1, 1934, the appellant presented a check to the appellee in the amount of $2,636.08. Payment was refused and the check marked, “N. S. F.,” meaning not sufficient funds. On the same date and after the demand was made upon the appellee for the sum of $2,636.08, appellant cashed a check for $25 which was deducted from his account. After this check for $25 was cashed, the deposit of the appellant on the books was shown to be the sum of $1,609.08; thus it appears that the amount of appellant's balance on May 1, 1934, was the sum of $2,636.08, providing the two checks had not been charged to his account. It is the contention of the appellant that the amount of the check and the demand was for the correct balance. Appellant then brought suit against the appellee to recover the sum of $2,636.08 as his deposit in the bank. The cause was tried by the court without the intervention of a jury, and judgment was entered in favor of the appellee bank, from which judgment this appeal was taken.

The brief of appellant sets forth several errors relied upon for reversal, but in his argument asserts that there is only one question involved in the case, namely: “Who had the burden of proving the genuineness of the endorsement of the payee on the two checks, marked Defendant's Exhibits A and B and their proper certification?” The appellant urges that because in his reply to the answer of appellee he denied by affidavit the indorsement of the payee on each of the checks, that thereby he prevented the admission of the two exhibits unless the appellee, by proper proof, established the genuineness of the indorsements of the payee. Appellant offered no proof in support of the invalidity of the indorsements, and his affidavit of denial was based upon information and belief, as follows: “That he is informed and believes, and so states the fact to be upon such information and belief that the...