First Nat. Bank Of Hancock v. Aler

• Decision Date: 14 November 1922
• Docket Number: (No. 4653.)
• Citation: 114 S.E. 745
• Parties: FIRST NAT. BANK OF HANCOCK, MD. v. ALER et al.
• Court: West Virginia Supreme Court

114 S.E. 745

FIRST NAT. BANK OF HANCOCK, MD.

v.ALER et al.

(No. 4653.)

Supreme Court of Appeals of West Virginia.

Nov. 14, 1922.

(Syllabus by the Court.)

Error to Circuit Court, Berkeley County.

Action by the First National Bank of Hancock, Md., against F. Vernon Aler and J. A. Butler. Judgment for plaintiff, and the last-named defendant brings error. Affirmed.

Walker, Kilmer & Byrer, of Martinsburg, for plaintiff in error.

H. H. Emmert, of Martinsburg, for defendant in error.

POFFENBARGER, P. The defense to this action by motion to recover the amounts due upon three negotiable notes, from the maker and an indorser, was limited to parts of the amounts claimed, and proceeded upon the theory of the perpetration of a fraud upon the indorser, by the cashier of the plaintiff bank, with its knowledge and assent. The notes were for $2,500, $700, and $250, respectively. Liability for $1,500 on account of the first, $650 on account of the second, and $225 on account of the third, was admitted, and the action defended as to the residue of $1,075.

An offer was made, to prove that, on the purchase of the notes by the bank, the cashier had obtained from the maker, without the knowledge of the indorser, the return to him of $1,000, out of the proceeds of the $2,500 note, by way of commission, $500 of which was compensation for procuring the discount of that note and $500 for similar services thereafter to be rendered; and that $50 had been charged by him for negotiation of the $700 note and $25 for the $250 note. There had been several renewals of all of the notes, and the $700 one represented a consolidation of two $350 notes. The two smaller ones were indorsed by J. A. Butler and J. F. Fields, the latter of whom seems to have been a stockholder of the bank. On the $2,500 note, there was an additional indorser, W. R. Daniels, a director of the bank and father of the cashier. Daniels and Fields are not sued in this action. As the bank is located in Maryland, they may be nonresidents and may have been omitted for that reason.

After the cashier had testified to the bank's title to the notes, he admitted, on cross-examination, the relationship between himself and W. R. Daniels and the official position held by W. R. Daniels, and also his procurement of the indorsements of the $2,500 note by his father and Fields. An effort was then made, by questions propounded in different forms, to require him to state whether or not $1,000 of the proceeds of the $2,500 note had been handed back to him by the maker thereof, after it had been discounted by the bank. To all of these questions, objections were promptly interposed and the court sustained them. Expectation of affirmative answers to the questions was avowed by the defendants, and the witness offered to deny that he had received any of the money, but was not permitted to make such denial a part of the evidence...