Hodnick v. Fidelity Trust Company

Decision Date13 December 1932
Docket Number14,387
Citation183 N.E. 488,96 Ind.App. 342
PartiesHODNICK v. FIDELITY TRUST COMPANY
CourtIndiana Appellate Court

Rehearing denied April 6, 1933.

From Marion Superior Court (Room 4); Clarence E. Weir, Judge.

Action by Louie J. Hodnick against the Fidelty Trust Company. From a judgment for defendant, plaintiff appealed.

Affirmed.

L William Curry and A. W. Fenstermacher, for appellant.

Rocap & McShane, for appellee.

OPINION

CURTIS, C. J.

This was an action brought in the lower court by the appellant, Louie J. Hodnick, against the appellee, Fidelity Trust Company, for money had and received. The complaint was in one paragraph, to which was filed an answer in three paragraphs. The first paragraph of answer was a general denial; to the second paragraph of answer the appellant demurred, which demurrer was sustained and no amended second paragraph of answer was filed. The third paragraph of answer alleged that at the time of the commencement of the action appellee had no money to which the appellant was entitled or of which the appellant was the owner, except 77 cents. To this paragraph of answer the appellant filed a reply in general denial thus closing the issues. Upon the issues thus formed the cause was tried by the court who made a general finding in favor of the appellee and against the appellant that he take nothing by his complaint. Appellant filed a motion for a new trial which was overruled, and judgment was rendered on said finding in favor of the appellee. From this judgment the appellant prayed and perfected this appeal assigning as error that the court erred in overruling appellant's motion for a new trial. The motion for a new trial contained the following causes, to-wit: "(1) That the decision of the court is not sustained by sufficient evidence; (2) That the decision of the court is contrary to law."

Most of the evidence is not in conflict and it establishes the following facts, to-wit: That the appellant had a general checking account in the appellee bank in a sum in excess of $ 235.00; that on March 23, 1929, while said money was on deposit the appellant issued a check thereon in favor of one Lena Hummel who lived in another city; that on March 25, 1929, and before the check had been cashed at the said bank, the appellant called at the bank to stop payment on the check; that at said time to secure a stop payment on said check he signed a written stop payment order which is in words and figures as follows:

"Please endeavor to stop payment of my-our check.

Date, March 25, 1929.

Drawn by L. J. Hodnick. No. 10, $ 235. Favor of Mrs. Lena Hummel. Dated March 30, 1929. Reason, In asking this courtesy the undersigned agrees to hold the above named bank harmless for said amount and for all expenses and costs incurred by it on account of refusing payment of said check, and further agrees not to hold the said bank liable on account of payment contrary to this request if made through inadvertence or accident. If a duplicate check is issued or if the original check is returned, the undersigned agrees to notify the bank promptly, if this request is not previously revoked, the undersigned agrees that it will automatically expire at the end of sixty days unless a new request is made before that time for the stop payment to continue in force. To--Signed L. J. Hodnick."

In considering the evidence most favorable to the appellee, as we are required to do, we find that Albert E. Lamb, a witness, testified in substance that he was the auditor for the appellee and as such he supervises the accounts of the bank and that the bookkeepers are under his supervision; that appellant had a deposit at the bank and that the depositors' names are kept in ledgers divided into eight sections according to the alphabet; that one of the two bookkeepers for the bank, Rose Prang, had charge of the ledger containing the appellant's name and that she died on Saturday, April 6, 1929, on the day the check in question was paid; that Hortense Mack had been taken off of the bank's general books and placed in charge of the work Miss Prang had been doing; that Miss Mack was experienced on deposit ledgers; that stop payment orders are kept in alphabetical order; that the said check was paid at the time Miss Mack was on the books and that it was not paid through the window but was paid through the clearing house and bears the endorsement of the Mercantile Commercial Bank of Evansville where the payee lived. The witness then described in detail the banking and clearing house methods used on Saturdays and we quote that part of his testimony as shown in appellant's brief as follows: "Our banking hours Saturday are the same but the clearing house hours are not the same; the clearing house hours are 2:45 week days and 1:30 on Saturday. When a check comes in through the clearing house on a Saturday it is paid when presented at the window, giving the messenger from the bank that presents them our check in payment of them. Any checks that are found not to be good must be returned by the limit placed by the clearing house which is 1:30. A check drawn on an Indianapolis bank and coming from Evansville, and in possession of the Fletcher American Bank who is likely the correspondent bank with the bank at Evansville, the Fletcher American Bank makes a list of all their checks they have on the respective banks, in this case it would be the Fidelity Trust Company and they are sent to the Clearing House Association and from the clearing house they make a record of the items and then the messenger presents the checks to the banks on which they are drawn. The Clearing House only lists the total of these checks, then the clearing house messenger comes to our bank, leaves the check and gets our check and payable to the Fletcher American Bank in payment of these checks, we have an opportunity to look at those checks on the list from the time that he leaves them up until the end of the clearing house hours which is 1:30 on Saturday. Saturday is ordinarily a very busy day and in the rush of business there, it is possible that a check could have been paid even though a stop payment had been issued. Miss Prang died on the 6th of April, the same day on which the check was paid.

CROSS-EXAMINATION

"This check was cashed on April 6, and the words in red ink 'payment stopped' on the check were put on the check after it was paid in an effort to return it to the bank through which it came the following day, or at the time it was discovered as having been paid contrary to the stop order."

Hortense Mack testified in part as follows: "I had nothing to do with the deposit ledgers or the stop payment orders. After Miss Prang was taken ill I posted her ledgers, among which was the ledger in which Mr. Hodnick's account was in. I was not acquainted with practice of stop payment orders. Do not recall date when this check for $ 235.00 was paid, I did post it. When a check comes in it is handed to the bookkeeper who has that account, to post it on the books. I do not recall posting Mr. Hodnick's check for $ 235.00 against his account. I did not know of this stop payment order at the time; I learned about it several days after, and about his check having been paid. I learned of Miss Prang's death on Saturday and we were all very excited and worked up over it. I believe Miss Prang had been at the bank ten years to my knowledge; was well acquainted with her and with her frequently. Received the news of Miss Prang's death between 11 and 11:30. It was about this time the clearings were coming through.

"This check was cashed or paid on April 6, on the day Miss Prang died. I was only on those books that week; Miss Prang was sick at that time. Mr. Hodnick's check was posted with me. I did not know of Mr. Hodnick's stop order payment of this check; he did not order the stop order through me."

The only question involved in this appeal is whether, under the law, and under the evidence most favorable to the appellee it is released from liability by reason of the "stop payment order" heretofore set out, which, among other things, provided that ...

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