Fee v. National Bank of the Republic

• Decision Date: 04 January 1910
• Docket Number: 2049
• Court: Utah Supreme Court
• Parties: FEE v. NATIONAL BANK OF THE REPUBLIC

106 P. 517

37 Utah 28

FEE v. NATIONAL BANK OF THE REPUBLIC

No. 2049

Supreme Court of Utah

January 4, 1910

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Dennis Fee against the National Bank of the Republic.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Soren X. Christensen and Howat & Macmillan for appellant.

Thompson & Gibson for respondent.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

On May 21, 1908, respondent herein filed his complaint in the district court of Salt Lake County, in which he in effect alleged that on the 16th day of April, 1908, the appellant herein had received from respondent the sum of $ 1077.62 for his use, and that said appellant had agreed to pay the same to respondent upon demand, that before the bringing of this action respondent demanded from appellant said sum of money and that said appellant refused to pay the same to respondent. Appellant answered the complaint, and, after denying respondent's version of the transaction, stated the facts to be substantially as follows: That on the 16th day of April, 1908, appellant received from respondent the sum of $ 2227.62, which appellant agreed to pay respondent on demand; "that on the 20th day of April, 1908, the defendant paid to the plaintiff on his check the sum of $ 1150; that on the 24th day of April, 1908, the defendant paid to the plaintiff on his check the sum of $ 1075; that there is still due to the plaintiff the sum of $ 2.62, which the defendant is now, and at all times herein mentioned has been, ready and willing to pay to the plaintiff on his demand." Upon these pleadings the case was tried to the court without a jury. At the trial the facts adduced on the part of respondent were, in substance, as follows: Respondent produced a deposit slip issued by appellant, from which it appears that respondent, on April 16, 1908, deposited with appellant the sum of $ 2230.87; that on April 20, 1908, respondent's check, drawn against said account for $ 1150, was presented and duly paid by appellant; that on May 4, 1908, respondent drew another check against said account for the sum of $ 1077.62, and presented the same to appellant for payment, and that payment thereof was refused upon the ground that respondent had no money in the bank except the sum of about $ 2.60; that at the time respondent presented the second check for payment appellant gave him a statement from which it appeared that respondent had actually deposited with appellant the sum of $ 2230.87; that appellant had paid out on checks drawn against said account the sum of $ 2228.25, leaving a balance of $ 2.62 due respondent. The respondent denied that he drew, or presented, or authorized any one to draw or present for payment, any check or checks drawn against said account, except the check for the sum of $ 1150. On cross-examination respondent was shown a certain check to which his name was signed, dated April 23, 1908, for the sum of $ 1075, payable to the order of P. H. O'Neill, and which was paid by appellant April 24, 1908. Respondent denied that the signature to the check aforesaid was his signature, and stated, in substance, that the appellant had paid the same without authority. All the checks which appellant claimed were drawn on respondent's account, and which it had paid, and the signature of respondent which he had left with the appellant, as well as other genuine signatures, were admitted in evidence, and all were before the court for comparison. For reasons hereinafter stated we shall not refer to the other evidence, of which there is considerable in the record. Upon substantially the foregoing evidence the court in substance found that the appellant had received from the respondent for his use the sum of money as alleged in the complaint, that respondent had demanded the same from appellant, and that appellant had refused to pay the same, or any part thereof, to the respondent. As a conclusion of law the court found that the appellant owed respondent such sum of money, and rendered judgment accordingly.

Among other assignments of error the appellant insists that the court erred in finding that appellant had not paid, either to respondent or to his order, the sum of $ 1075, the amount of the check dated April 23, 1908. It is contended that this finding is not supported by the evidence, and is contrary thereto. In view of the pleadings the issue between the parties was very narrow. The only question for the court to pass on was whether appellant had in fact paid the respondent or to his order the sum in controversy, namely, the $ 1075. It seems that at the trial the question of whether such payment was made was thought to depend entirely on whether the check for $ 1075 was genuine or not. This at least was the theory of counsel who represented appellant at the trial as clearly appears from his own statement, which is incorporated into and made a part of the bill of exceptions. Counsel there said that, if the court found for the appellant "on the question of the genuineness of the signature of Dennis Fee, . . . judgment...