Neal v. First Nat. Bank of Lebanon, Ind.
| Decision Date | 18 April 1901 |
| Citation | 60 N.E. 164,26 Ind.App. 503 |
| Parties | NEAL v. FIRST NAT. BANK OF LEBANON, IND. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Boone county; James V. Kent, Special Judge.
Action by Stephen Neal against the First National Bank of Lebanon, Ind., to recover money paid on a forged check from plaintiff's account. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
B. F. Ratcliff and T. J. Terhune, for appellant. S. M. Ralston and S. R. Artman, for appellee.
This was an action commenced by appellant to recover from appellee the sum of $275 on a check dated February 8, 1899. The complaint is in one paragraph, and alleges that for more than six years prior to the 1st day of January, 1899, appellant was a customer and depositor of appellee; that on the 1st day of January, 1899, he had to his credit $12.97, and on January 4, 1899, he deposited with appellee the sum of $300; that on February 8, 1899, he drew his check on appellee in favor of B. F. Ratcliff or bearer for the sum of $275, which check was on said day duly presented, and payment demanded, and that payment was, by appellee, refused; that said check was drawn for the purpose of making due and legal demand on appellee for said sum of money, said Ratcliff having no interest in said check, and having paid no consideration therefor. The trial court overruled the demurrer to the complaint. Appellee answered in seven paragraphs. Appellant demurred to each paragraph of answer. The court sustained appellant's demurrer to the second, fourth, fifth, and seventh paragraphs of answer, and overruled it as to the third and sixth. The cause was submitted for trial, and by the request of both parties the court made a special finding of facts, and stated its conclusions of law thereon. Appellant excepted to the conclusions of law stated. The question presented by this appeal is raised by the exception to the conclusion of law stated upon the special finding of facts. The special finding stating the facts, which are not disputed, was as follows.
“(1) That on February 8, 1899, and for more than ten years continuously previous thereto, the plaintiff, Stephen Neal, and one Laura A. Neal were husband and wife, and until the 1st day of February, 1899, they lived together as such, and that on the 15th day of June, 1899, the plaintiff, Stephen Neal, was granted a divorce from the said Laura A. Neal by the Boone circuit court, in Boone county, Indiana.
(2) That the plaintiff, Stephen Neal, was, on February 8, 1899, and for six years previous thereto, a depositor with the defendant, and that on the 8th day of February, 1899, there was to his credit with the defendant the sum of $7.18; that the defendant was on said date, and had been for more than two years previous thereto, a corporation, doing a banking business in the city of Lebanon, county of Boone, and state of Indiana.
(3) That on the 8th day of February, 1899, the plaintiff; Stephen Neal, drew, or caused to be drawn, his check on the defendant, payable to B. F. Ratcliff, or bearer, for the sum of $275, said check being in the words and figures following, to wit:
‘The First National Bank. [Stamp.] Lebanon, Ind., February 8, 1899. No. -----. Pay to B. F. Ratcliff, or bearer, $275.00 (two hundred seventy-five dollars).
+-------------------+
¦ ¦his ¦ ¦
+--------+----+-----¦
¦Stephen ¦X ¦Neal.¦
+--------+----+-----¦
¦ ¦mark¦ ¦
+-------------------+
Witness to mark: G. W. Cassady.'
-Said check bearing a two-cent revenue stamp. That on the said 8th day of February, 1899, the said Ratcliff presented said check at the defendant's place of business to Wes Lane, who was the cashier of defendant, for payment, and demanded of the said Lane payment of said check; and that payment thereof was refused by the said Lane for the reason that there were not sufficient funds to the credit of the plaintiff with defendant with which to pay and discharge said check.
(4) That on the 4th day of January, 1899, the plaintiff deposited with the defendant to his (plaintiff's) credit the sum of $300, and that the plaintiff's total deposits on the 4th day of January, 1899, with the defendant, amounted to $312.97.
(5) That on January-, 1899, Laura A. Neal, plaintiff's wife, under the authority and direction of plaintiff, drew plaintiff's check on the defendant, and signed his name thereto, payable to Theodore Neal, or bearer, for the sum of $15, which check was presented by the said Theodore Neal, who is a son of the plaintiff, to defendant, and by defendant paid; that on the 10th day of January, 1899, Laura A. Neal, plaintiff's wife, under the authority and direction of plaintiff, drew plaintiff's check on the defendant, and signed his name thereto, payable to Means & Witt, or bearer, for the sum of $5.79, which check was presented to the defendant for payment, and by the defendant paid; that on the 13th day of January, 1899, Laura A. Neal, plaintiff's wife, under the authority and direction of plaintiff, drew plaintiff's check on the defendant, and signed his name thereto,payable to the said Theodore Neal, or bearer, which check was by the said Theodore presented to the defendant for payment, and by the defendant paid; that on the 18th day of January, 1899, Laura A. Neal, plaintiff's wife, under the authority and direction of plaintiff, drew plaintiff's check on the defendant, and signed his name thereto, payable to the said Theodore Neal, or bearer, which check was by the said Theodore presented to the defendant for payment on said date, and by the defendant was paid,-all of which checks were paid out of the plaintiff's account with the defendant, leaving a balance therein on the last-named date of $282.18.
(6) That on the 11th day of June, 1899, the plaintiff was eighty-two years old, and that in the first week of July, 1898, he lost his eyesight, and from that time to the present he has been and is practically totally blind; that upon the losing of his eyesight in July, 1898, as aforesaid, he became and was unable thereafter, and is at the present time unable, to write; that the plaintiff is a man learned in the law, and of strong mental capacity, and was judge of the Boone circuit court from the 10th day of November, 1890, until the 10th day of November 1896; that the plaintiff now and for more than eight years last past has resided within one-half mile of the defendant's place of business.
(7) That from July 1, 1898, to January 28, 1899, there were in all 25 checks drawn on the deposit of the plaintiff with the defendant, and by the defendant charged against said deposit. That all of said checks were written by Laura A. Neal, wife of the plaintiff, including the signature thereto. That all of the checks drawn between July 1, 1898, and January 28, 1899, were written and drawn by said Laura A. Neal under the authority and specific direction in each case given by the plaintiff, and with his knowledge and consent, except five checks, as follows, to wit: One check for $5, dated November 9, 1898, drawn in favor of Gertrude Neal, a daughter of the plaintiff and said Laura A.; one check for $5, dated October 21, 1898, drawn in favor of said Gertrude; one check for $2, dated November 18, 1898, drawn in favor of said Gertrude; and one check dated December 15, 1898, for $15, payable to said Laura A. Neal, or bearer, and one dated January 27, 1899, for $275, payable to the said Laura A. Neal, or bearer, which last-mentioned checks were drawn by the said Laura A. Neal, and the plaintiff's name signed thereto, without authority from the plaintiff so to do, and without his knowledge or consent. That at no time at or prior to the payment of said $275 check did the defendant make any inquiry as to the genuineness of said checks, or whether they had been authorized by the plaintiff. That all of the aforesaid checks have the signature of Stephen Neal only, except said $15 check, dated December 15, 1898, and said $275 check, dated January 27, 1899, both of which said last-named checks have the signature of Stephen Neal and Laura Neal.
(8) That during the time the plaintiff was a depositor with the defendant he kept a pass book, which was from time to time posted, audited, and compared with the books of the defendant, and returned to the plaintiff, together with all the checks audited and charged in said pass book.
(9) That the pass book kept by the plaintiff, and which showed the state of his account with the defendant, was, subsequent to the failure of plaintiff's eyesight, posted, audited, compared with the books of the defendant on August 6, 1898, August 30, 1898, November 30,...
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