Miles City Bank v. Askin
| Decision Date | 17 March 1947 |
| Docket Number | 8689. |
| Citation | 179 P.2d 750,119 Mont. 581 |
| Parties | MILES CITY BANK v. ASKIN. |
| Court | Montana Supreme Court |
As Amended on Denial of Rehearing May 1, 1947.
Appeal from District Court, Sixteenth Judicial District, Custer County; S.D. McKinnon, Judge.
Action by Miles City Bank against George F. Askin to recover on a check alleged to have been drawn by defendant and payment of which was stopped. From an adverse judgment, defendant appeals.
Reversed and remanded for a new trial.
W. B. Leavitt, of Miles City, and F. F. Haynes, of Forsyth, for appellant.
George W. Farr, of Miles City, and Denzil R. Young, of Baker, for respondent.
Action for recovery on a check alleged to have been drawn by the defendant on the Bank of Baker, Montana, payment of which was stopped by defendant. From an adverse judgment, defendant appeals.
The complaint alleges the execution and delivery, by defendant, to J. W. Clark, of a check in the amount of $5,000, dated January 6, 1945, drawn on the Bank of Baker; the negotiation of such check, on the same day, to plaintiff; that plaintiff bank, in the usual course of its business, cashed the check and paid the drawee the amount thereof, since which date plaintiff has been the owner and holder thereof; that said check was presented to the drawee bank for payment, which was refused; that prior to presentment, the defendant countermanded its payment by instructing the drawee bank to refuse payment. The complaint further alleges demand upon defendant, and his refusal of payment.
By his answer defendant denies generally the material allegations of the complaint, and specifically that he made, gave or delivered to J. W. Clark or any other person the alleged check; admits that the drawee bank refused payment of the alleged check, at his direction. For a first affirmative defense, defendant alleges that he did not utter or give to J. W. Clark the alleged check or any check for $5,000; that he was not indebted to said Clark in said or any amount; that if his signature is on said check, which he denies, the check was changed after being signed, without his knowledge or consent, and that he countermanded payment before presentment.
For a second affirmative defense, defendant alleges that at the time plaintiff paid the alleges check same had not been accepted or guaranteed by the drawee bank, and that plaintiff knew that payment could be stopped by defendant at any time prior to presentment and acceptance; that on information and belief, the said Clark was not a customer of or depositor in plaintiff bank; that plaintiff was not required to pay cash on presentation of the alleged check, but it could, and in the exercise of ordinary diligence and in the usual and ordinary course of business, should have sent the check for collection, and should have received the proceeds thereof before paying Clark any thereof, thereby protecting itself against loss; that in paying the alleged check in cash plaintiff was negligent, and any loss sustained was the result of its own negligence.
Upon plaintiff's motion, defendant's second affirmative defense was stricken. By reply, plaintiff denied every allegation of the first affirmative defense. The jury's verdict was in favor of plaintiff, for the full amount demanded.
The defendant assigns error by the trial court, (1) in striking the second affirmative defense; (2) in refusing evidence offered by defendant, and sustaining objections to certain questions propounded; (3) in refusing instructions requested by defendant, and giving instructions offered by plaintiff (4) in entering judgment against defendant; (5) that the evidence is insufficient to sustain the verdict and judgment which are contrary to law.
The circumstances under which plaintiff obtained the cleck were these: On January 6, 1945, Clark, the payee, presented the check to Vern Bublitz, teller of plaintiff bank, for payment. After identifying the check, Bublitz testified showing this phone call '1/6/45,' January 6th, 1945.
'Q. And how did you come to see it? A. J. W. Clark presented it to me for payment for cash.
'Q. He presented it to you through the bank for payment? A. Yes, that's right.
'Q. And what did he say if anything? A. Well he just gave me the check,--he says, 'I would like to have you call up on that, it is a little large amount and I want you to call up on that because I want the cash for it,'--he said, 'I want the cash for it, and I would like to have you call up and see if that check is good.''
The witness did call the drawee bank, and ascertained only that defendant's deposit was sufficient to pay the check. He further testified that he was not acquainted with defendant and had never heard of his business reputation or standing; that Clark had on several occasions presented Askin's checks for payment, none of which had been turned down. With reference to the usual practice in disposition of checks presented under similar circumstances, he said:
It was satisfactorily established that the check sued on bears the signature of the defendant.
The defendant testified that on the night of January 5th and the morning of January 6, 1945, he was at Leon Park, a resort on the outskirts of Miles City; that on that occasion J. W. Clark was dealing a blackjack or twenty-one game, in which defendant joined as a player. He identified two checks in the respective amounts of $150 and $1,000 signed by him, both payable to J. W. Clark, introduced in evidence as plaintiff's exhibits 'B' and 'C.' According to defendant's testimony, he signed these checks and filled in the numerals indicating the amounts appearing behind the dollar sign, the rest being written in by Clark. In this connection defendant stated that he was unable to write the word 'thousand.' These checks, as well as the one sued on, were written in lead pencil, all made payable to Clark and indorsed by him. These were certified as original exhibits on the appeal and are before us as a part of the record.
Defendant testified that on the same night he wrote one other check in the amount of $150, payable to Clark. This, and exhibits 'B' and 'C' were delivered to Clark in payment for chips used in the blackjack game. This check was not presented for payment, and defendant was under the impression that Clark tore it up when defendant, during the game, turned in chips to redeem it.
Defendant does not deny that his signature appears on the check sued on, but does deny that he signed a check for the amount of $5,000 payable to Clark, or that he at any time owed Clark that sum. It is his belief, as indicated by his testimony, that the $150 check was not, in fact, destroyed by Clark, and was raised to $5,000. He testified, upon interrogation by the trial judge:
'Q. Do you claim that check was raised or altered? A. It had to be something, I never saw that check before.
'Q. What amount to you claim it was altered from? A. One hundred and fifty dollars, I claim.
'Q. You claim it was written
He testified positively that he wrote only three checks that night, and had never given Clark a signed blank check. Also, that at the conclusion of the game he was indebted to Clark to the extent of $1,000, and delivered exhibit 'C' to him in full payment. This check is indorsed by both Clark and Leon Brothers, the operators of the resort. According to testimony of Louis B. Leon, it was delivered to him by Clark, and deposited in the account of Leon Brothers in the First National Bank of Miles City.
The check in suit is in words and figures as follows:
BAKER, MONTANA Jan. 6 1945. No.-------
Pay to the
order of J. W. Clark $ 5000.00/xx
Five Thousand dollars 100/xx Dollars
(ok) Phone call 1-6-45
Check Irregular
Maker disclaims.
The portion italicized is printed, the balance being written in lead pencil. The words '(ok) Phone call 1-6-45' were written by the witness Bublitz, the then teller of plaintiff bank. The words 'Check Irregular Maker disclaims' were written by an employee of the drawee bank.
The witness Bublitz testified that the check when admitted in evidence was in the same condition and appearance as when presented for cashing by Clark, with the exception of the writings placed thereon by Bublitz and an employee of the drawee bank. A casual examination of the exhibit discloses that it had apparently been changed, after being written, in the following particulars:
1. The written words 'Five Thousand' and the figures '5000.00/xx' are obviously written with a different pencil than the balance of the writing, being distinctly blacker, heavier and more distinct than the other writing.
2. That portion of the face of the check...
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State v. Romero
...a new trial for the failure of defense trial tactics at the time of trial. This court, in the case of Miles City Bank v. Askin, 119 Mont. 581, 591, 179 P.2d 750, 755, 171 A.L.R. 790, 'Ordinarily the question of whether a particular alternation is, or not, manifest or visible is one of fact ......