Haynes Equity Union Exchange, a Corp. v. First National Bank of Hettinger
| Decision Date | 19 December 1932 |
| Docket Number | 6091 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Adams County, Englert, J.
Reversed.
Jacobsen & Murray, for appellant.
Sullivan Hanley & Sullivan, for respondent.
In this action the plaintiff sues the defendant to recover on a check, dated the 23rd day of September, 1931, for the sum of $ 750.00. The case was tried to the court and the trial judge made findings of fact and conclusions of law favorable to the defendant, upon which judgment was entered dismissing the case. Thereafter the plaintiff duly appealed from the judgment.
From the facts, as stipulated, it appears that on the 23rd day of September, 1931, the plaintiff had on deposit in the Adams County State Bank a credit balance of $ 815.61 and on said day, the plaintiff executed and delivered its check for the sum of $ 750.00 against its account in the Adams County State Bank, payable to the First National Bank of Hettinger; the said Adams County State Bank and the First National Bank of Hettinger being both located in the town of Hettinger, North Dakota. At the time of receiving the check from the plaintiff the defendant bank gave the plaintiff credit upon the books of said defendant bank in the sum of $ 750.00, the amount of the said check, but no deposit slip of any kind was executed or delivered to the depositor. On the 23rd day of September, 1931, the date upon which the said check was issued, in connection with the clearing as between the First National Bank of Hettinger and the Adams County State Bank, and on the close of business on said day, the defendant presented said check to the Adams County State Bank for payment and that the said Adams County State Bank did, then and there, upon said clearing for said check, and other items, make, execute and deliver its draft to the First National Bank of Minneapolis in the sum of $ 3,394.77. That at the said time the Adams County State Bank had sufficient funds in the First National Bank of Minneapolis to take care of and pay said draft and at said time the total cash on hand in the Adams County State Bank was the sum of $ 2,098.25. That the plaintiff never at any time specifically authorized the defendant to take any draft of the Adams County State Bank in lieu of cash and gave no specific instruction whatsoever with reference to the handling of said item. The said check was received by the Adams County State Bank and handled by the said bank at the time according to their usual course of business and clearing, but it was determined the same evening that the Adams County State Bank would not open for business the next morning and it was agreed that the draft would not be paid, as the Adams County State Bank would be closed before said draft was paid and collection made upon all of the checks in the last day's clearings. Accordingly, the said check, and other items making up said draft, were held with the intent and purpose of returning the same to the First National Bank of Hettinger. Before the return was made the State Examiner took charge of the Adams County State Bank and directed that said checks be posted against the various accounts to which they were drawn and on the 25th day of September 1931, the said check, and other items, which had been received by the defendant, were posted against the various accounts upon which they were drawn and the same were marked paid. On the evening of the 25th of September, after the posting of said checks, the First National Bank of Hettinger, the defendant, demanded the checks from the examiner in charge of the bank and was advised that the method adopted by the examiner was the usual and customary method of handling matters of that sort and the checks were not returned, the examiner sent to the plaintiff a statement, introduced in evidence as exhibit "B," showing that the charge of $ 750.00 was made on the 23rd day of September, 1931, and is the item exhibit "A," and that the said posting was actually done by the bank examiner on the 25th day of September, 1931. The $ 750.00 check was returned to the plaintiff with the statement and has been in its possession at all times since. Immediately after the defendant bank received the draft from the Adams County State Bank it forwarded, forthwith, the said draft to Minneapolis for collection and credit to the account of the First National Bank of Hettinger but the Adams County State Bank not opening for business on the 24th day of September, 1931 and the First National Bank of Minneapolis receiving notice of the closing of said bank by wire, refused payment on the draft and refused to give credit therefor. On the 27th day of October, 1931, the defendant bank charged the account of the plaintiff with the amount of said check without the knowledge of the plaintiff. The defendant bank, in its pass book, known as depositor's book, set out therein the policy, terms and conditions upon which it accepted checks, drafts and other items for credit or collection and defendant's exhibit "1," is a sample of the pass books in use at the said First National Bank of Hettinger, and which had been in use in said bank for several years prior. It was further stipulated that it was, at the time of this transaction, and for many years prior thereto, a well established custom, in the business of banks and banking in western North Dakota and also in the community of Hettinger, North Dakota, and at Hettinger, North Dakota, and for banks generally, to conduct their business in the manner set out in the pass book above referred to. The plaintiff was not furnished with a pass book. No book was used in connection with its transaction with the bank and on various occasions had charged back to the account of the plaintiff bad checks, checks not paid for want of funds, checks drawn on accounts not in existence, but had not at any time previously charged back any check in any transaction similar to the one in the instant case.
There was no specific agreement made between the plaintiff and defendant as to the deposit involved nor as to the condition under which the deposit was made and received and none whatever with reference to the manner of handling the item and it was further stipulated that the court may assume that the plaintiff has testified, subject to the objection of the defendant, that it is irrelevant and immaterial, that the plaintiff had no actual knowledge of the provisions set out in the passbook or the custom of banking as referred to and set out in the pass book, excepting only as to the previous return and charge back of items as hereinbefore stipulated. That the defendant handled this transaction in the same manner and pursuant to the general course of business as was generally customary, as hereinbefore set forth and was in operation in western North Dakota and in the community of Hettinger and the town of Hettinger, including the presentment of the item, the receiving of the draft, the forwarding of the draft to the Minneapolis bank upon which it was drawn for credit, the charging back of the item upon the failure of realization upon the draft, was all in accordance with the usual and general custom of banks and banking hereinabove set out....
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