Grissel v. Bank of Woonsocket

• Decision Date: 02 September 1899
• Citation: 80 N.W. 161,12 S.D. 93
• Parties: GRISSEL v. BANK OF WOONSOCKET.
• Court: South Dakota Supreme Court

80 N.W. 161

12 S.D. 93

GRISSEL v. BANK OF WOONSOCKET.

Supreme Court of South Dakota

September 2, 1899

Appeal from circuit court, Sanborn county; Frank B. Smith, Judge.

Action by R. J. Grissel against the Bank of Woonsocket to recover a sum claimed to be due him on his deposit account. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. H Kean and J. L. Hannett, for appellant. J. E. Whiting and T H. Hull, for respondent.

CORSON P. J.

This was an action brought by the plaintiff against the defendant to recover $400 claimed to be due him on his deposit account with said bank. The defendant bank, prior to the commencement of this action, had applied the balance due plaintiff on his deposit account to the payment of a certain note executed by the plaintiff to the defendant on or about the 4th day of June, 1892, for the sum of $560, upon which there was paid December 31, 1892, the sum of $206.41. The defendant alleges in its answer that on or about the 13th day of September 1894, the defendant and the plaintiff had a settlement, and that, after making certain deductions, there was found to be due the defendant, on account of said note, $400; that thereupon the plaintiff drew out the sum of $167.44, being the amount of his deposit in excess of $400, and the $400 was applied by the defendant upon the said note, and plaintiff's account closed and balanced. The plaintiff, in reply, alleged that the $560 note was given by him for the accommodation of his brother, Charles Grissel, and that on or about the 8th day of June, 1893, said Charles Grissel paid the balance of his debt, represented by the said $560 note, to the defendant by giving to it a certain note for $716.65, to pay said note and another debt claimed by said defendant to be due from said Charles Grissel. Plaintiff further alleged that said note ($716.65) was given to said defendant, and accepted by it, in full payment and satisfaction of the debt of the said Charles Grissel to said defendant represented by said note of plaintiff to said bank, and for all other indebtedness of the said Charles Grissel, and that this last-mentioned note was secured by a real-estate mortgage and a chattel mortgage. There was a sharp conflict in the evidence, as to the nature of the transaction resulting in the giving of the $716.65 note, between Charles Grissel and wife on the one part, and Charles E. Hinds and O. P. Graham, officers of the bank, on the other. Charles Grissel and wife testified that it was understood and agreed between them and the said Hinds, as cashier of the defendant bank, that the last note, secured by the real-estate and chattel mortgages, should cancel the $560 note executed by the plaintiff. This was denied by both Hinds and Graham, who testified that the new note was taken as collateral security for the note of the plaintiff then held by the bank, and not in payment of the same. The only question was, which of these parties correctly stated the agreement that was entered into at that time. On the trial the bank sought to show the conversations between R. J. Grissel and the bank with reference to securing extension of time, statements as to the payment of the note, and other matters connected with the same, and, the evidence being excluded, the bank made the following offer: "Defendant offers to prove by the witness Hinds that from June 8, 1893, up to September 6, 1894, he had frequent conversations with the plaintiff in this action relative to his (the plaintiff's) indebtedness to the bank upon said note, and that in these conversations the plaintiff never denied his liability, and said he would pay the same as soon as possible." This evidence was excluded, and the defendant excepted. It appears from the evidence that the plaintiff's note remained in the bank, uncanceled, for a period of about 14 months after the transaction of June 8th, and that neither Charles nor R. J. Grissel ever demanded possession of said note, and by the offer the defendant sought to show that during all that time R. J. never denied his liability, and said he would pay the same as soon as possible.

Under these circumstances, and in view of the conflict as to what the agreement was between Charles Grissel and the officers of the bank at that time, it was certainly proper for the bank to show what conversations and negotiations were had between it and R. J. Grissel between the 8th of June, 1893, and the 1st of September, 1894, in reference to the payment of his note, and a request for an extension of the time of payment asked for on the part of R. J. Grissel. In view of this conflict in the evidence, the jury were entitled to know how R. J. Grissel and the bank officers had treated this note during the 14 months it remained in the bank, in order that they might come to the proper conclusion as to whether the statements of Charles Grissel and wife or those of the officers of the bank were to be believed. Had this...