Mine & Smelter Supply Co. v. Stock Growers' Bank

Decision Date21 October 1912
Docket Number3,641.
CourtU.S. Court of Appeals — Eighth Circuit

George S. Redd, of Denver, Colo., for plaintiff in error.

T Blake Kennedy, of Cheyenne, Wyo., for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and W. H. MUNGER District judge.

CARLAND Circuit Judge.

This case was here once before on demurrer to the complaint. Mine & Smelter Supply Co. v. Stock Growers' Bank, 173 F. 859, 98 C.C.A. 229. The case having been remanded for proceedings not inconsistent with the opinion of this court, it was moved for trial upon the second cause of action stated in the complaint. This cause of action declared upon a cashier's check executed and delivered to the supply company by the bank November 9, 1906, for the sum of $5,870.74. The answer of the bank admitted the execution and delivery of the check, but alleged that the issuance of said check was beyond the power of the cashier of the bank, and that the same was issued without consideration. For a second defense, the bank alleged that the plaintiff, on the 15th day of April, A.D. 1910, recovered a judgment against the town of Thermopolis, Wyo., in the District Court of the United States for the District of Wyoming, for the sum of $10,000, with costs, which judgment included the same items for which the cashier's check was given, and that to allow a recovery upon the cashier's check would represent a double payment. There was a replication by the supply company admitting the recovery of the judgment alleged in the answer of the bank, but denying that a recovery upon the cashier's check would represent a double payment. The replication also denied that the cashier's check was issued without authority and that there was no consideration for the same.

A jury being waived, the case was tried to the court. Special findings of fact were made by the court in favor of the defendant, upon which judgment was rendered. Exception was taken to each of the special findings of fact, and the case is now here on writ of error.

The trial court found that the issuance and delivery of the cashier's check was entirely without consideration. If this finding of fact is sustained by the evidence, it disposes of the case; and we will first consider the assignment of error based upon this finding.

The evidence introduced at the trial, so far as the consideration for the cashier's check is concerned, established the following facts: James W. Martin was cashier of the bank. Holdrege & Son had a contract with the town of Thermopolis to build a waterworks system. The town issued bonds in the sum of $30,000, which seemed to have been delivered to the bank to deliver to Holdrege & Son when the latter had given a good and sufficient bond for the performance of the contract of building the waterworks system. Martin testified as a witness that the cashier's check was issued by him November 9, 1906, with the belief that the bonds had been sold in Denver, Colo., and that on the next day the bank would receive the proceeds thereof; that the cashier's check was given to pay the unpaid and protested checks drawn by Holdrege & Son on the bank, in favor of the supply company. The sale of the bonds, however, failed, and they were subsequently adjudicated invalid by the courts, so that the bank never received any money whatever for the cashier's check.

Herbert E. Fiske, a witness for the supply company, and who was its assistant secretary in November, 1906, testified that there was nothing said about the sale of the bonds when Martin, the cashier gave the cashier's check, and that the only thing he (Fiske) heard in reference to the matter was that the cashier's check was delivered to the supply company to carry out a proposition made by Martin in a letter dated October 13, 1906. Fiske also testified that there was no other consideration for the check than the promise of the bank to pay checks of Holdrege & Son, some of which had been protested, and others not cashed. It further appeared in evidence that the supply company was furnishing supplies to...

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4 cases
  • Farmers & Merchants State Bank v. Western Bank
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 11, 1988
    ...and Section 4-302 dealing with the payor bank's responsibility for late return of items.8 See, e.g., Mine & Smelter Supply Co. v. Stock Growers' Bank, 200 F. 245, 247-48 (8th Cir.1912); National Bank v. Miner, 167 Cal. 532, 538-39, 140 P. 27, 30 (1914); Dakota Transfer & Storage Co. v. Merc......
  • Sainz Gonzalez v. Banco de Santander-Puerto Rico
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 3, 1990
    ...issued in payment of personal check drawn on issuing bank and bearing an unauthorized signature), with Mine & Smelter Supply Co. v. Stock Grower's Bank, 200 F. 245 (8th Cir.1912) (failure of consideration where cashier's check mistakenly issued in payment of "insufficient funds" check drawn......
  • State of Pa. v. Curtiss Nat. Bank of Miami Springs, Fla.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 8, 1970
    ...134 S.E.2d 457 (1963); Tarrant Wholesale Drug Co., v. Kendall, Tex.Civ.App.1949, 223 S.W.2d 964, 966-967; Mine & Smelter Supply Co. v. Stock Growers' Bank, 8 Cir., 1912, 200 F. 245. A cashier's check is defined as a bill of exchange drawn by a bank upon itself and accepted in advance by the......
  • City of St. Louis v. Chicago House Wrecking Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 29, 1912
    ... ... sewers and drains and of pipes for a water supply and for ... fire protection would have to be ... ...

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