Montsdoca v. Highlands Bank & Trust Co.

• Decision Date: 09 February 1923
• Citation: 95 So. 666,85 Fla. 158
• Court: Florida Supreme Court
• Parties: MONTSDOCA v. HIGHLANDS BANK & TRUST CO.

95 So. 666

85 Fla. 158

MONTSDOCA v. HIGHLANDS BANK & TRUST CO.

Florida Supreme Court

February 9, 1923

Rehearing Denied Feb. 24, 1923.

Error to Circuit Court, Highlands County; George W. Whitehurst Judge.

Action by William Montsdoca against the Highlands Bank & Trust Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Finding that bank was not negligent in forwarding check for collection held proper; 'usual commercial way in use according to regular course of business of banks.' Section 4748, Rev. Gen. St. 1920, provides that, when a check is deposited in a bank for collection, 'it shall be considered due diligence' to forward the check en route 'without delay in the usual commercial way in use according to the regular course of business of banks,' and that the maker of the check 'shall be liable to the bank until actual final payment is received,' and that when a bank receives a check for collection, and forwards the same for collection as above stated, the bank 'shall only be liable after actual final payment is received by it except in case of want of due diligence on its part as aforesaid.' It was shown that a check drawn on a bank in K. city was deposited for collection in the defendant bank in H., perhaps after usual banking hours on June 11th, and the item entered in the depositor's passbook on that date that the usual course of business is to put in the bank's vault checks received after banking hours and to include them in the next day's business; that the check was entered in the remittances of June 12th, 'but the last train carrying mail on June 12th left H. about 11 a. m. before the conclusion of the day's business, and, June 13th being Sunday, the next mail train left H, about 8 a. m. Monday June 14th, on which train the remittance left H.; that the remittance was sent to a bank in J. city, and from there forwarded to S. bank in K. city for collection; that payment was made by O. to S. bank, but S. bank was closed by state officials before the proceeds of the check were remitted to the bank in J. city, to be forwarded to the bank in H., where the deposit for collection was made. The trial judge (a jury being waived) found 'that the defendant bank has shown due diligence under the provisions of the statute with reference to the handling of the check' and rendered judgment for the defendant. Held, the finding made, being predicated upon sufficient evidence, warranted the judgment rendered, and the finding is not shown to be clearly wrong; therefore the judgment is affirmed.

Does not apply in general to transactions forbidden by statute or contrary to public policy. The doctrines of estoppel and waiver do not in general apply in transactions that are forbidden by statute or that are contrary to public policy.

COUNSEL

Johnston & Garrett, of Kissimmee, for plaintiff in error.

Fairfax T. Haskins, of Sebring, and Treadwell & Treadwell, of Arcadia, for defendant in error.

OPINION

WHITFIELD J.

In an action to recover the amount of a check deposited in a bank for collection from a bank in another county of the state, trial was had before the judge, a jury having been waived.

It was stipulated that on Friday, June 11, 1920, the plaintiff deposited in the defendant bank in Sebring, De Soto county, Fla., a check drawn on the Bank of Osceola County, in Kissimmee, Fla.; that no special contract was made as to the transaction; that the deposit was entered in plaintiff's passbook as of June 11, 1920; that the check shows stamps of a Jacksonville bank dated June 15, 1920, and of the State Bank of Kissimmee, kissimmee, Fla., dated June 16, 1920; that the State Bank of Kissimmee collected the amount of the check from the Bank of Osceola County in Kissimmee on June 16, 1920, 'the check having been forwarded originally from the Highlands Bank & Trust Company to its Jacksonville depository, the Atlantic National Bank of Jacksonville, Fla., and by it to the State Bank of Kissimmee, Fla., for collection from the Bank of Osceola County, Kissimmee, Fla.'; that on June 16, 1920, before the State Bank of Kissimmee had remitted the proceeds of the check it had collected from the Bank of Osceola County, the State Bank of Kissimmee was closed by order of the comptroller of the state of Florida, and the proceeds of said collection is now in the hands of the receiver of the State Bank of Kissimmee. There is evidence that the check was entered on the remittance sheet of the bank, addressed to the Jacksonville bank on June 12, 1920, and that checks received on deposit after banking hours are placed in the vault of the bank and entered in the business of the next day. It appears that the mail train left Sebring about 11 a. m. Saturday, and that the next mail train going north left Sebring about 8 a. m. on Monday, June 14, 1920. Kissimmee is north of Sebring, and Jacksonville is north of Kissimmee, in the state of Florida. The court made specific findings and gave judgment for the defendant. Plaintiff took writ of error.

Section 4748, Revised General Statutes 1920, is as follows:

'That when a check, draft, note or other negotiable instrument is deposited in a bank for credit, or for collection, it shall be considered due diligence on the part of the bank in the collection of any check, draft, note or other negotiable instrument so deposited, to forward en route the same without delay in the usual commercial way in use according to the regular course of business of banks, and that the maker, indorser, guarantor or surety of any check, draft, note or other negotiable instrument, so deposited, shall be liable to the bank until actual final payment is received, and that when a bank receives for collection any check, draft, note, or other negotiable instrument and forwards the same for collection, as herein provided, it shall only be liable after actual final payment is received by it, except in cases of want of due diligence on its part as aforesaid.'

This statute makes the bank in which a check is deposited for deposit or collection liable only 'after actual final payment is received by it,' unless it is negligent in its duty 'according to the regular course of business of banks.'

'If the person receiving a check and the bank on which it is drawn are in different places, it must be forwarded, for presentment, by mail or other usual mode of transmission, on the next day after the receipt thereof at the place in which the payee resides or does business, if reasonably and conveniently practicable, and, if it is not so practicable then by the next mail, or other similar means of conveyance leaving after said date.' Lewis, Hubbard & Co. v. Montgomery Supply Co., 59 W.Va. 75, 52 S.E....