First National Bank of DuBois City v. First National Bank of Williamsport

• Citation: 114 Pa. 1,6 A. 366
• Decision Date: 04 October 1886
• Docket Number: 96
• Parties: The First National Bank of DuBois City v. The First National Bank of Williamsport
• Court: United States State Supreme Court of Pennsylvania

6 A. 366

114 Pa. 1

The First National Bank of DuBois City v. The First National Bank of Williamsport

No. 96

Supreme Court of Pennsylvania

October 4, 1886

April 5, 1886

ERROR to the Court of Common Pleas of Clearfield county. Of January Term 1886, No. 96.

This is an action of assumpsit brought by the First National bank of Williamsport, Pa., against the First National bank of DuBois city, Pa., to recover the amount of a certain promissory note, alleged to have been sent by the Williamsport bank to the DuBois bank for collection, and which the DuBois bank denies ever having received. Plea, non-assumpsit with leave. The note is alleged to have been drawn by Simon &amp Postlethwaite, in favor of A.D. Lundy, dated April 2d, 1884 at three months, for $376.98, and payable at the First National bank of DuBois, and which, it is alleged, was endorsed by A.D. Lundy and A.D. Lundy & Co., and discounted by the Williamsport Bank and transmitted by letter, dated June 11th, 1884, to the DuBois bank for collection.

It was alleged by the Williamsport bank that it mailed said letter June 14th, 1884, to the DuBois bank, enclosing two checks drawn on the DuBois bank, one for $32.25 and the other for $137.85, and that in the same letter, upon the opposite side of the page from the items named, were the words written "Simon & P. 376.98" referring to the note in controversy. A few days thereafter, they received a remittance, from the DuBois bank for the checks, which remittance by draft, was enclosed in the original letter sent from the Williamsport bank, but no mention of the note. See copy of letter in the opinion of the Supreme Court. The cashier of the DuBois bank denied, positively, that the words "Simon & P. 376.98" were upon the letter received from the Williamsport bank, at the time it was received and returned. The president of the DuBois bank also testified that he did not see the entry upon the letter. The cashier of the Williamsport bank, and two clerks of the same bank, whose depositions were taken at Williamsport, testified as to the manner of doing business with regard to the transmission of collections, and their bank books were produced before the notary who took their testimony, identified by the witnesses and copies of the entries alleged to have been made of this transaction were attached or copied in the testimony. Upon the trial of the cause, no person connected with the Williamsport bank appeared at court or was called as a witness. The depositions of the Cashier and the two clerks were offered in evidence and objected to by the defendant bank, because the books containing what is alleged to be the original entries of the transaction were not produced in court for inspection by the jury, and that copies were not competent evidence under the circumstances. The Court overruled the objections and admitted the evidence. (First second and third assignments of error.)

The court, KREBS, P.J., instructed the jury, inter alia, as follows:

Now, the only question of fact is, did they receive this note? If they did, under the evidence as produced, there being no allegation that it was protested, no allegation that payment was demanded when it became due, then they are liable. [Now, did they receive it? What is the evidence bearing upon that question? When you come to consider it, we instruct you as a matter of law, that the Williamsport bank is not bound to prove to your satisfaction beyond a reasonable doubt, that the bank at DuBois received this note -- that is not the law; but they must satisfy you by the weight of evidence that they did receive it. That is, the evidence of their having received it must preponderate over the evidence of the DuBois bank, that they did not receive it.] (Fourth assignment of error.) If the evidence preponderates, then your verdict must be for the side on which the preponderance of evidence is.

Now, what is the evidence? The Cashier of the bank at Williamsport, Mr. Campbell and Mr. Harris, clerks in the bank, testify in relation to what was done about sending this note. Mr. Sloan, the cashier, testifies that he received the envelope in which this letter, to which reference has been made, and which was attached to the depositions -- was received by him; that the memorandums and lead pencil marks were upon it; that it is the hand-writing of Mr. Harris, one of the clerks in the bank.

Mr. Harris testifies -- and his testimony with that of Mr. Campbell and Mr. Sloan, must be taken together, because the three show what the transaction was in reference to this note. They must all be considered, and no one considered, separately, the one from the other. They testified as to the entries in the books, and it is in evidence that these books were presented and the witnesses testified to them as the original entries in the books, that they testified that these entries were made at the time that the letter was written, and with the note and the two checks was enclosed to the bank at DuBois; that the letter with whatever enclosures were in it must have been mailed, is, it seems to us, beyond all dispute in this case, because the bank at DuBois had remitted for the amount of the checks less their charges for collection.

[If this memorandum in regard to the discount of the note "Simon & P. $376.98" was upon that letter before they sent it back, the note was also enclosed before they sent that letter back, and it would be almost conclusive that they lost the note.] (Fifth assignment of error.) If the note was not enclosed, it was their duty, as careful business men, to have called the attention of the Williamsport bank to the fact that the enclosures of the checks were all right, but that no such note was enclosed.

Now, it is argued on the part of the defendant, that this memorandum was not upon this letter; that it must have been put there afterwards. Of course, if it was not on at the time they received this letter with the checks, for which they remitted, it must have been put there by some one afterwards, and would therefore be a forgery.

Now, you will have to take into consideration, what credit you will give the different witnesses who have testified as to the writing of this letter and the enclosure of the note therein. Who is to be believed? It comes down to the weight of testimony in the case.

Mr. Arnold (of the Dubois Bank) testifies that he did not see any note; that he has no recollection of seeing any such memorandum on that letter when it was received by him. Now, as bearing upon the testimony of Mr. Arnold, it is to be remembered that he first testified in this case that he had no communication with the bank about this matter, until after he had received notice from Mr. McEnally in regard to this note. He qualifies that afterwards, and corrects himself, but his entire evidence, as bearing upon the question of testing his recollection, you have a right to consider. It is your duty to consider it along with the other evidence in the case.

[There is some evidence in regard to a notice given Mr. Simon of a note held for collection by the bank at DuBois. Mr. Simon is called to the stand, but he cannot tell whether the postal card he received was the notice from the bank for the $100 note or the one for $376.98. He says he gave it no attention. He does testify that he moved away from DuBois on the 14th of June, 1884, and the $100 note, according to the testimony of Mr. Arnold, was due on the 23d of June, 1884. Mr. Simon also testifies that it was some time after he moved from DuBois to Big Run that he received the notice. Mr. Arnold testifies that they always gave their notices from one to two weeks before the notes were due.

Now, from this testimony, some light may be thrown upon the subject of whether or not this notice had reference to the $376 note or the $100 note. It is a matter for your consideration, whether from the circumstances you can get any additional light upon this question. It is a difficult question to deal with, and you can only make up your judgment from the weight of evidence. You are not bound to find beyond a reasonable doubt.] (Sixth assignment of error.) We say to you that if you are satisfied from the weight of evidence the DuBois National Bank did not receive this note, then they are not liable. If they did receive it, and you are satisfied from the weight of evidence that they received it, then they are liable and your verdict must be for the plaintiff for the full amount of the note with interest.

Verdict for the plaintiff in the sum of $404.62, and thereupon judgment, whereupon the defendant took this writ, assigning for error the admission of the plaintiff's evidence as above indicated, and those portions of the general charge included within brackets.

The judgment is reversed, and a venire facias de novo awarded.

Frank Fielding, for plaintiff in error. -- It was error to admit the depositions in this case without bringing into court for the inspection of the jury the books to which reference was made, and from which the testimony was almost wholly taken.

It was the duty of the notary to mark the pages of the original books offered in evidence, and make and attach copies of the same to the testimony; and it was then the duty of the plaintiff to produce the original books, thus marked and identified, in court. The records of the business transactions of a bank are not such records as are provable by copy. Had this been so, there would have been no necessity for the legislature to pass the Act approved June 22d, 1883 providing that the books of a bank or banker may be verified by copies, under certain conditions therein specified, but providing also, that the provisions of that Act shall not apply to a suit to which a bank or banker is a party. Even were such...