Miller v. N. Bank

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtFAIRCHILD
Citation300 N.W. 758,239 Wis. 12
PartiesMILLER v. NORTHERN BANK.
Decision Date04 November 1941

239 Wis. 12
300 N.W. 758

MILLER
v.
NORTHERN BANK.

Supreme Court of Wisconsin.

Nov. 4, 1941.


Appeal from an order of the Circuit Court for Milwaukee County; William F. Shaughnessy, Circuit Judge.

Reversed.

[300 N.W. 759]

Action commenced October 17, 1940, by Mary Miller against the Northern Bank to recover the amount of a check of which she was named payee and which was cashed by defendant on a forged indorsement. Defendant demurred to the complaint on the ground it failed to state facts sufficient to constitute a cause of action. From an order overruling the demurrer defendant appeals.

Allegations of the complaint are: that plaintiff's investments were managed by one Harry M. Lenartz and one John Lenartz who were associated as Harry M. Lenartz and Company; that sometime prior to April 1, 1940, plaintiff received notice that four $500 bonds she owned were being called; that thereafter plaintiff consulted John Lenartz; that on his advice he was given authority to collect amounts due on the bonds; that on April 10, 1940, Harry M. Lenartz and Company issued a check for $2,000 payable to plaintiff; and that the check was cashed on a forged indorsement and $2,000 credited to the personal account of Harry M. Lenartz.

In overruling the demurrer to the complaint the lower court held that the complaint stated a cause of action against the defendant in conversion or for money had and received.

Defendant points out that there was no privity of contract between plaintiff and defendant; that the execution of the check did not operate as an assignment of the drawer's funds; and that a payment on a forged indorsement is out of the bank's own funds.

Plaintiff's position is that although Wisconsin has adopted the Negotiable Instruments Law, it does not apply to this case and that in any event property belonging to the plaintiff was wrongfully converted by defendant.

James E. Coleman and John B. Frisch, both of Milwaukee, for appellant.

Zimmers, Randall & Zimmers, of Milwaukee, for respondent.


FAIRCHILD, Justice.

[1][2] Before the passage of the Negotiable Instruments Law, Ch. 356, Laws of 1899, it was the rule in this state that the giving of a check for value on an ordinary bank deposit was intended as an assignment of the fund pro tanto as between the maker and the payee. Raesser v. National Exchange Bank, 112 Wis. 591, 88 N.W. 618, 56 L.R.A. 174, 88 Am.St.Rep. 979. That rule was abolished by the Negotiable Instruments Law. Under that act a check of itself no...

To continue reading

Request your trial
6 practice notes
  • Weaver Const. Co. v. Farmers Nat. Bank of Webster City, No. 50575
    • United States
    • United States State Supreme Court of Iowa
    • June 12, 1962
    ...on their merits.' [253 Iowa 1294] We have considered the authorities defendant cites on this branch of the case. Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 759, 137 A.L.R. 870, 873, is typical of the precedents cited. That opinion points up the distinction between the present case ......
  • Anschutz v. Central Nat. Bank of Columbus, No. 35057
    • United States
    • Supreme Court of Nebraska
    • December 22, 1961
    ...following group of cases determined after the passage of the act from the courts of other states are here cited. Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 137 A.L.R. 870; Gordon Fireworks Co. v. Capital Nat. Bank, 236 Mich. 271, 210 N.W. 263; Elyria Savings & Banking Co. v. Walker......
  • Strickland Transp. Co. v. First State Bank of Memphis, No. A-1638.
    • United States
    • Supreme Court of Texas
    • November 10, 1948
    ...on a proper indorsement, when the check was first presented, refused to pay it." The same holding was made in Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 137 A.L.R. 870. In holding that the bank was not liable to the payee directly, the Court said (239 Wis. 12, 300 N.W. 758, 760, 13......
  • Farmers and Merchants Bank v. Universal C. I. T. Credit Corporation, No. 8282
    • United States
    • Supreme Court of Utah
    • November 10, 1955
    ...an acceptance or a promise to accept a holder of a bill has no right of action upon that bill against the drawee. Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 137 A.L.R. 870; State Bank of Chicago v. Mid-City Trust & Sav. Bank, 259 Ill. 599, 129 N.E. 498, 12 A.L.R. 989. The N.I.L., U......
  • Request a trial to view additional results
6 cases
  • Weaver Const. Co. v. Farmers Nat. Bank of Webster City, No. 50575
    • United States
    • United States State Supreme Court of Iowa
    • June 12, 1962
    ...on their merits.' [253 Iowa 1294] We have considered the authorities defendant cites on this branch of the case. Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 759, 137 A.L.R. 870, 873, is typical of the precedents cited. That opinion points up the distinction between the present case ......
  • Anschutz v. Central Nat. Bank of Columbus, No. 35057
    • United States
    • Supreme Court of Nebraska
    • December 22, 1961
    ...following group of cases determined after the passage of the act from the courts of other states are here cited. Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 137 A.L.R. 870; Gordon Fireworks Co. v. Capital Nat. Bank, 236 Mich. 271, 210 N.W. 263; Elyria Savings & Banking Co. v. Walker......
  • Strickland Transp. Co. v. First State Bank of Memphis, No. A-1638.
    • United States
    • Supreme Court of Texas
    • November 10, 1948
    ...on a proper indorsement, when the check was first presented, refused to pay it." The same holding was made in Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 137 A.L.R. 870. In holding that the bank was not liable to the payee directly, the Court said (239 Wis. 12, 300 N.W. 758, 760, 13......
  • Farmers and Merchants Bank v. Universal C. I. T. Credit Corporation, No. 8282
    • United States
    • Supreme Court of Utah
    • November 10, 1955
    ...an acceptance or a promise to accept a holder of a bill has no right of action upon that bill against the drawee. Miller v. Northern Bank, 239 Wis. 12, 300 N.W. 758, 137 A.L.R. 870; State Bank of Chicago v. Mid-City Trust & Sav. Bank, 259 Ill. 599, 129 N.E. 498, 12 A.L.R. 989. The N.I.L., U......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT