First State Bank of Overton v. Stephens Bros.

• Decision Date: 05 October 1905
• Citation: 105 N.W. 43,74 Neb. 616
• Parties: FIRST STATE BANK OF OVERTON v. STEPHENS BROS.
• Court: Nebraska Supreme Court

74 Neb. 616

105 N.W. 43

FIRST STATE BANK OF OVERTON

v.STEPHENS BROS.

Supreme Court of Nebraska.

Oct. 5, 1905.

Syllabus by the Court.

Where a party gives a reason for his decision and conduct touching anything involved in a controversy, he is estopped after litigation has begun from changing his ground and putting his conduct on another and different consideration.

Commissioners' Opinion. Department No. 2. Error to District Court, Dawson County; Hostetler, Judge.

Action by Stephens Bros. against the First State Bank of Overton. There was judgment for plaintiff, and defendant brings error. Affirmed.E. A. Cook, for plaintiff in error.

Warrington & Stewart, for defendant in error.

JACKSON, C.

On September 24, 1902, J. T. Bend drew a check on the First State Bank of Overton for the sum of $111.35, payable to Stephens Bros. Two days later this check was presented at the bank for payment, by one of the members of the firm of Stephens Bros., and payment was refused. Thereupon Stephens Bros. sued the bank to recover the amount of the check. In their petition, they set out the corporate capacity of the bank, the execution and delivery of the check, the presentation thereof at the bank, and the demand for the payment thereof, and alleged “that said defendant bank refused to pay said check, and stated as the reason for refusing to pay the same, that said Bend had instructed it not to pay the same, and gave no other reason for not paying the same.” They further alleged that Bend had on deposit in the bank money sufficient to pay the check, and that no part of the same had been paid, and prayed judgment for the amount of the check, with interest and costs. The bank answered, admitting its corporate capacity, the making and presentation of the check, and that the same was not paid, and denied all other allegations in the petition. At the trial it was conclusively proven by competent evidence, and in fact admitted by the cashier of the bank, that at the time the check was presented the bank refused payment, and gave as the only reason why the check was not paid, that payment had been stopped by the maker. The member of the firm of Stephens Bros., who presented the check for payment, testified that at the time the bank refused to pay the check, he inquired of the cashier whether Bend had money on deposit in the bank, and that the cashier answered that Bend always had funds in the bank. On behalf of the defendant, the cashier testified that at the time the check was presented for payment, Bend had no money on deposit in the bank, and he denied having made the statement to the plaintiff, at the time the check was presented, that Bend always had funds in the bank. There was a total failure to prove any fact justifying the course of the drawer of the check in attempting to stop the payment thereof. The trial resulted in a verdict and judgment for the plaintiff for the amount of the check, with interest, and the bank prosecutes error. The principal contention of the bank is that the maker of the check had no funds in the bank at the time the check was presented for payment, and that, by reason of that fact, no liability was incurred by reason of the refusal of the bank to pay the check. If the claim of a lack of funds was well founded, it would have been a complete defense in this action, had it disclosed that fact to the payee at the time the check was presented for payment; but, instead of doing so, the bank chose to base its refusal, upon the ground that payment thereof had been stopped by the maker, and the claim of a lack of funds was first made after the litigation had commenced. The rule in this jurisdiction is that where a party gives a reason for his...