First Nat. Bank of Wymore v. Miller

• Decision Date: 30 June 1893
• Citation: 55 N.W. 1064,37 Neb. 500
• Parties: FIRST NAT. BANK OF WYMORE v. MILLER.
• Court: Nebraska Supreme Court

37 Neb. 500

55 N.W. 1064

FIRST NAT. BANK OF WYMORE

v.MILLER.

Supreme Court of Nebraska.

June 30, 1893.

Syllabus by the Court.

1. On Saturday, the 31st day of May, 1890, about the close of banking hours, one M. indorsed in blank, and deposited to his credit in a bank of Wymore, Neb., certain checks drawn to his order by one B. on a bank in Courtland, Neb. Wymore and Courtland are 27 miles distant from one another, but connected by telegraph, telephone, and railroad lines; and a mail left Wymore at 6 P. M. daily, arriving at Courtland at 9 P. M. the same day. The Wymore bank made no inquiry of the Courtland bank as to whether the checks were good, nor did it at any time advise the Courtland bank that it held the checks, but on the day of their receipt mailed said checks to a bank in St. Joseph, Mo., which bank sent them by mail to a bank in Omaha, Neb., and this latter bank sent them by mail to the bank in Courtland, at which they arrived on June 5th, and were then protested for nonpayment. Held, that the Wymore bank did not present the checks for payment to the Courtland bank in a reasonable time, and that the indorser, Miller, was thereby discharged.

2. An ordinary check is not designed for circulation, but for immediate presentment, and, to charge an indorser, must be presented with all due dispatch and diligence consistent with the transaction of other commercial business.

3. Greater diligence is required in presenting ordinary checks for payment than in presenting bills of exchange. Whether an ordinary check has been presented for payment by the indorsee thereof in such a reasonable time as to hold the indorser must be determined from the facts and circumstances of each particular case.

4. No custom or usage among bankers as to the manner of presenting ordinary checks for payment will relieve them from the legal duty of presenting such checks for payment within a reasonable time.

5. In a suit by an indorsee against the indorser of an ordinary check, where the defense is that the check was not presented for payment within a reasonable time, inquiry as to whether the indorser was damaged by reason of the failure to present the check for payment is immaterial.

Commissioners' decision. Error to district court, Gage county; Appelget, Judge.

Action by Abraham L. Miller against the First National Bank of Wymore to compel payment of a balance. Judgment for plaintiff. Defendant brings error. Affirmed.A. D. McCandless and Marquett, Deweese & Hall, for plaintiff in error.

Griggs, Rinaker & Bibb and T. F. Burke, for defendant in error.

RAGAN, C.

On Saturday, the 31st day of May, 1890, about 4 o'clock in the afternoon, Abraham L. Miller indorsed in blank, and deposited to his credit in the First National Bank of Wymore, two checks, drawn by A. W. Beahm to Miller's order, on the State Bank of Courtland, Neb. These checks aggregated $3,429.25. The town of Courtland is 27 miles distant from Wymore, the two being connected by telephone, telegraph, and railroad lines, and two daily mails. The mails for Courtland closed at Wymore, at that time, at 6 and 8 o'clock, respectively, in the afternoon of each day. The first mail would reach Courtland at 9 o'clock P. M. of the same day, and the second at 10 o'clock the next day. The plaintiff in error made no inquiry of the Courtland bank as to whether the Beahm checks were good, nor did it notify the Courtland bank that it held such checks. On the same day that the checks were received by it the plaintiff in error sent them by mail to a bank in St. Joseph, Mo., for collection. That bank forwarded them by mail to the Omaha National Bank, at Omaha, Neb., for collection, and the latter sent them by mail to the State Bank of Courtland, on which they were drawn. This bank received them on Thursday, the 5th day of June. Beahm being insolvent, they were protested for nonpayment. At the close of business on Saturday, the 31st of May, Beahm had to his credit in the State Bank of Courtland $3,533.76. On the morning of Monday, the 2d day of June, at the commencement of business, Beahm had to his credit in the State Bank of Courtland the sum of $3,533.76, and during the day he deposited $3,200 more to his credit in the same bank. Against this sum the cashier of the Courtland bank had agreed to accept checks of Beahm amounting to $3,800. On the morning of Tuesday, June 3d, Beahm had to his credit in the Courtland bank $2,132.65. On the morning of Wednesday, June 4th, he had to his credit a balance in the Courtland bank of $1,621.35, and during the day deposited $500 more. During this day, June 4th, he drew against his deposits in the Courtland bank, so that on Thursday morning, June 5th, he had left to his credit in the Courtland bank the sum of $310.15. After Miller had deposited in plaintiff in error the two Beahm checks, he drew against them checks amounting to $2,472.29, which plaintiff in error paid, leaving to his credit a balance of $956.96. The bank having refused to pay him this, he brought this suit to recover it. The plaintiff in error filed an answer and counterclaim, in and by which it alleged the deposit by Miller in its bank of the Beahm checks; that it forwarded said checks in a reasonable time to the State Bank of Courtland, on which they were drawn, but that the checks were worthless, and payment was refused, for the reason that Beahm had no funds in the Courtland bank with which to pay the same, and that the checks were duly protested; and that on the day the checks were deposited it had paid checks of Miller amounting to $2,482.28, and that subsequently it had collected from the said Beahm $800, and put the same to the credit of Miller, leaving Miller owing the plaintiff in error $1,687.84, for which sum, with interest and protest fees, it prayed judgment against Miller. The case was tried to the court, a jury being waived. The court found for the defendant in error, Miller, and rendered judgment against the plaintiff in error for the sum of $956.96, the difference between the Beahm checks and the total of the checks which Miller had drawn on the bank after their deposit, and...