First Nat. Bank of Denver v. Henning, 15198.

• Decision Date: 19 June 1944
• Docket Number: 15198.
• Citation: 150 P.2d 790,112 Colo. 523
• Parties: FIRST NAT. BANK OF DENVER v. HENNING.
• Court: Colorado Supreme Court

150 P.2d 790

112 Colo. 523

FIRST NAT. BANK OF DENVER v. HENNING.

No. 15198.

Supreme Court of Colorado, En Banc.

June 19, 1944

Error to District Court, City and County of Denver; Floyd F. Miles Judge.

Action by W. F. Henning against the First National Bank of Denver to recover the amount of a cashier's check deposited by the plaintiff. To review a judgment for the plaintiff, the defendant brings error.

Reversed.

Hughes & Dorsey, Montgomery Dorsey, and Thomas Keely, all of Denver, for plaintiff in error.

F. W Harding, of Denver, for defendant in error.

HILLIARD Justice.

An action to recover the amount of a cashier's check deposited by defendant in error in the First National Bank of Denver. On a verdict in favor of defendant in error, judgment against plaintiff in error was entered. A motion to set the judgment aside and for judgment in favor of the plaintiff in error, or, in the alternative, for a new trial, was denied. Counsel for the bank in their specification of points assert that numerous errors to its prejudice appear. In our view it is necessary to consider but two of the points raised.

There is no conflict in the evidence. W. F. Henning, plaintiff below, is a resident of Casper, Wyoming. In April, 1941, a brother of Henning, a resident of Denver, opened a checking account for him in the First National Bank of Denver, and the bank issued and delivered to the brother the form of passbook generally issued to its customers, made out in Henning's name. A few days after the deposit made by his brother, Henning personally deposited the cashier's check here involved, using the form of deposit slip to which we hereinafter refer, and received from the teller a duplicate of such slip. The check was issued by and drawn on the Casper National Bank, was made payable to Henning and was endorsed by him in blank. At the close of the business day on which the check was deposited, the bank, in accordance with its long standing custom and that of Denver and other banks generally, placed the check and other items drawn on the Casper bank in an envelope addressed to that bank, enclosed the usual 'collection letter,' affixed the proper postage and sealed and deposited it in the United States mails. Although there is no direct evidence to that effect counsel for Henning asserts in his argument, and we will assume, that the check, and the items enclosed with it, did not reach the Casper bank, and were lost in transit. Neither is there direct evidence as to whether the Casper bank would or would not have paid the check if it had been presented, nor is there satisfactory showing that the Casper bank is unwilling to make Henning whole, but we will assume, again adopting Henning's assertions, that the Casper bank would have paid the check on presentation, and that it has refused to make Henning whole unless he shall furnish surety, at considerable expense, and requiring indemnification of the surety in case of loss, by a deposit of cash in an amount in excess of the face of the check. It is plain, however, that the Casper bank received and retains Henning's money in the amount of the check, paid to it when the check was issued, and that the Denver bank has not, and never has had Henning's money or anything but the possession for a time of the check.

The passbook issued to Henning at the time of the initial deposit contains the preliminary words on the first page thereof, 'In Account with W. F. Henning,' and the following, concluded on the last page: 'All checks, drafts and other items drawn on or payable at other banks are offered for deposit to, and received by, this bank as a forwarding agency and this bank will use diligence in selecting collecting agents but will not be responsible for their acts or omissions, negligent or otherwise, or for loss of items in transit. Such items will be handled at the risk of the depositor, subject to existing or future rules and regulations of The Denver Clearing House Association, of the Federal Reserve Board and/or any Federal Reserve Bank through which forwarded, and will be credited provisionally subject to final cash payment, the bank reserving the right to decline payment of checks drawn against such credits.

'This bank and all intermediate agencies may send items for collection or payment direct to the banks on which they are drawn (or at which payable) or, at its or their option, through any Federal Reserve Bank or to other banks or agencies, may receive payment in cash or in checks or drafts issued by the drawee or other banks and this bank shall not be responsible for the collection of such checks or drafts nor for losses incident to their dishonor. This bank may charge back to the depositor any such item at any time until actual cash payment is received and in like manner may charge to the depositor any unpaid checks or drafts (or interest therein) received in settlement therefor although the item itself is not returned.

'Items drawn on or payable at other banks in this city may be carried over for presentation under Clearing House arrangements or otherwise on business day following date of receipt. Items payable outside of this city need not be forwarded until business day following receipt.

'Items drawn on this bank found not good at close of business on day of deposit may be charged to depositor.

'This account is subject to such charges and conditions as may from time to time be decided upon by the Denver Clearing House Association, or imposed by law.

'The use of this book by a depositor constitutes his assent to the foregoing conditions which shall be applicable to all transactions between the customer and this bank.'

On the day Henning deposited the check he signed the form of 'signature card' employed by the bank. The card contains, above the signature of Henning, this printed language: 'The undersigned hereby assent to the following conditions and regulations which shall be applicable to all transactions between the undersigned and the Bank, viz: That all checks, drafts and other items drawn on or payable at other banks are offered for deposit and received by this bank as a forwarding agency and this bank will use diligence in selecting collecting agents but will not be responsible for their acts or omissions, negligent or otherwise, or for loss of items in transit. Such items will be handled, at the risk of the depositor, subject to existing or future rules and regulations of the Denver Clearing House Association, of the Federal Reserve Board and/or any Federal Reserve Bank through which forwarded, and will be credited provisionally subject to final cash payment, the bank reserving the right to decline payment of checks drawn against such credits. This bank and all intermediate agencies may send items for collection or payment direct to the banks on which they are drawn (or at which payable) or, at its or their option, through any Federal Reserve Bank or to other banks or agencies, and may receive payment in cash or in checks or drafts issued by the drawee or other banks and this bank shall not be responsible for the collection of such checks or drafts nor for losses incident to their dishonor. This bank may charge back to the depositor any such item at any time until actual cash payment is received and in like manner may charge to the depositor any unpaid checks or drafts (or interest therein) received in settlement therefor although the item itself is not returned. Items drawn on or payable at other banks in this city may be carried over for presentation under Clearing House arrangements or otherwise on business day following date of receipt. Items payable outside of this city need not be forwarded until business day following receipt. Items drawn on this bank found not good at close of business on day of deposit may be charged to depositor. This account is subject to such charges and conditions as may from time to time be decided upon by The Denver Clearing House Association or imposed by law.'

The deposit slip used by Henning in depositing the check bears on its face these words:

'All deposits are made and accepted subject to the conditions printed on the back hereof.' These printed conditions are as follows:

'All deposits are made and accepted subject to the following conditions which shall be applicable to all transactions between the customer and this bank.

'All checks, drafts and other items drawn on or payable at other banks are offered for deposit to, and received by, this bank as a forwarding agency and this bank will use diligence is selecting collecting agents but will not be responsible for their acts or omissions, negligent or otherwise, or for loss of items in transit. Such items will be handled at the risk of the depositor, subject to existing or future rules and regulations of the Denver Clearing House Association, of the Federal Reserve Board and/or any Federal Reserve Bank through which forwarded, and will be credited provisionally subject to final cash payment, the bank reserving the right to decline payment of checks drawn against such credits. This bank and all intermediate agencies may send items for collection or payment direct to the banks on which they are drawn (or at which payable) or, at its or their option, through any Federal Reserve Bank or to other banks or agencies, may receive payment in cash or in checks or drafts issued by the drawee or other banks and this bank shall not be responsible for the collection of such checks or drafts nor for losses incident to their dishonor. This bank may charge back to the depositor any such item at any time

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