Harryman v. Bowlin

• Decision Date: 15 September 1931
• Docket Number: Case Number: 20308
• Parties: HARRYMAN et al v. BOWLIN.
• Court: Oklahoma Supreme Court

1931 OK 525

4 P.2d 1011

153 Okla. 202

HARRYMAN et al v. BOWLIN.

Case Number: 20308

Supreme Court of Oklahoma

Decided: September 15, 1931

Syllabus

¶0 1. Payment--Delivery to Bank Collecting Draft of Check on Itself not Payment if Bank Insolvent and Check not Paid.

The delivery of a check to a bank on itself, to which bank a draft with bill of lading attached is sent for collection and remittance, does not amount to a payment, although the maker of the check has sufficient funds on deposit with such bank to meet it, it the bank is insolvent and the check is not paid.

2. Estoppel--Election of Remedies--Shipper by Filing Claim With Liquidating Agent of Failed Bank on Which Buyer Had Given Check to Pay Draft, and Receiving Part Payment, Held not Estopped to Sue Buyer for Balance of Claim.

Where a shipper at the request of a buyer sends a bill of lading with draft attached to a certain bank and the buyer delivered a check to the said bank in which the buyer has deposits and before the shipper receives his money the bank fails and he then files a claim with the liquidating agent of the bank and a part of the claim is paid from the deposits of said buyer, leaving a balance due the shipper, held, the filing of such claim with the liquidating agent is not such an election of remedy as will preclude the shipper from maintaining an action against the buyer for balance due upon the contract.

Appeal from District Court, Woodward County; Charles Swindall, Judge.

Action by W. R. Harryman and H. B. Harryman, copartners doing business as R. & H. Harryman, against C. E. Bowlin. Judgment for defendant, and plaintiffs appeal. Reversed and remanded, with directions.

W. A. Ayres, Austin M. Cowan, C. A. McCorkle, J.

D. Fair, and Charles R. Alexander, for plaintiffs in error.

L. A. Foster, for defendant in error.

LESTER, C. J.

¶1 This is an appeal from the district court of Woodward county, and the parties appear in the same order as in the court below. The action was brought on a contract wherein the plaintiffs sold the defendant a carload of broom corn. The plaintiffs followed the instructions of defendant and sent the bill of lading with draft attached to the New State Bank at Woodward, Okla. At the trial certain stipulations were agreed to by the parties. The stipulations that are material to the issues herein are:

"It is agreed that the defendant, C. E. Bowlin, directed the plaintiffs to send the sight draft and bill of lading to the New State Bank;

"That the contract of purchase consisted of letters, identification of which is waived, and admitted for the purpose of this action without objection; * * *

"That on or about the 12th day of October, 1923, a sight draft was in regular banking channels forwarded to the New State Bank of Woodward, Okla., and there presented to the defendant, C. E. Bowlin;

"That the car of broom corn was shipped to C. E. Bowlin from Wichita, Kan., according to the terms of the contract.

"That on the 12th day of October, the defendant, C. E. Bowlin, deposited in the New State Bank sufficient funds to take care of the sight draft, and that the New State Bank on that date delivered the bill of lading to Mr. Bowlin and he took possession of the car of broom corn.

"That $ 1,800 of that was by check drawn on the First National Bank and the funds of the New State Bank augmented in the sum of $ 1,800 by reason of the check drawn on the First National Bank in payment of the draft.

"It is further stipulated and agreed that the New State Bank was a banking institution organized under the laws of the state of Oklahoma with its place of business at Woodward, Okla., and that it was open for the transaction of business on October 12, 1923, and that on the morning of the 13th of October, 1923, the New State Bank failed to open its doors, and was by the Bank Commissioner declared to be insolvent and taken over by the Bank Commissioner, and that on the 13th day of October, 1923, the assets of the New State Bank were turned over to O. B. Mothersead, Bank Commissioner of the state of Oklahoma, for the purpose of liquidating the affairs of that bank.

"It is further stipulated and agreed that thereafter, and in the latter part of the year 1923, and the first of 1924, the plaintiffs filed with O. B. Mothersead, by correspondence, a claim against the assets of the New State Bank in the sum of $ 2,154.03, arising from the transaction in suit, and in which claim the plaintiffs claimed a preference right of payment in that sum of money out of the assets of the New State Bank, and that O. B. Mothersead, as Bank Commissioner of the state of Oklahoma, allowed the claim as a preferred claim in the sum of $ 1,800 and rejected it as a preferred claim in the sum of $ 354.03." (C.-M. pp. 58-59.)

¶2 The trial court at the conclusion of the evidence rendered its judgment for the defendant on the ground that the plaintiffs by attempting to collect their claim from the liquidating agent of the New State Bank then and thereby made an election of remedies. The plaintiffs urge two propositions herein: First, the failure of payment by the defendant; second, there was not such an election of remedy as would bar the plaintiffs from maintaining an action against the defendant. An examination of the record shows that a draft would have been sent to the First National Bank of Woodward but for an instruction given by the defendant to send the draft with bill of lading attached to the New State Bank. The evidence does not show that the check given by the defendant to the New State Bank in order to take up the draft was charged against the account of the defendant at the New State Bank. The following cases sustain the theory that the giving of an unpaid check by the defendant did not constitute payment. Shapleigh Hardware Co. v. Crews, 124 Okla. 247, 255 P. 696; City of Sulphur v. Farmers' National Bank, 101 Okla. 148, 224 P. 518. In the case of the Baker-Evans Grain Company, Appellee, v. Thom Ricord, Appellant, 126 Kan. 107, 267 P. 14, the court said:

"The giving of a cheek by a debtor for the amount of his indebtedness to the payee is not, in the absence of an express or implied agreement to that effect, a payment or discharge of the debt."

Also in the same case it is said:

"The delivery to a bank of a check on itself, to which bank a draft with bill of lading attached is sent for collection and remittance, does not amount to a payment, although the maker of the check has sufficient funds on deposit with such bank to meet it, if the bank is insolvent and the check is not paid."

¶3 On the question of the election of remedy by plaintiffs, the following sections, C. O. S. 1921, provide:

"Section 171. Division of remedies. Remedies in the courts of justice are divided into: First. Actions. Second. Special proceedings.

"Section 172. Action defined. An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.

"Section 173. Special proceedings. Every other remedy is a special proceeding."

¶4 Section 172, supra, fully defines actions. Section 173, supra, does not define special proceedings, but in the following cases a special proceeding is defined to be:

"The term 'special proceeding' is used in the Codes of Practice in many of the states in contradistinction to 'action.' It may be said generally that any proceeding in the court, which was not under the common law and equity practice, either an action at law or a suit in chancery, is a special proceeding." In re Central Irr. Dist., 117 Cal. 382, 49 P. 354.

"The phrase 'special proceeding', within its proper definition, is a generic term for all civil remedies in

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