Nebraska Nat. Bank v. Logan

• Decision Date: 01 April 1890
• Parties: NEBRASKA NAT. BANK v. LOGAN ET AL.
• Court: Nebraska Supreme Court

29 Neb. 278

45 N.W. 459

NEBRASKA NAT. BANK

v.LOGAN ET AL.

Supreme Court of Nebraska.

April 1, 1890.

Syllabus by the Court.

1. L. & S., residents of V., in this state, on Friday, November 16th, sent by mail a check on a bank at V. to M., B. & Co., at O., Neb. This was received by M., B. & Co. on the next day. The payee on the same day indorsed the check, and delivered it to the Nebraska National Bank at O., which on the same day transmitted the same by mail to the bank at V., on which it was drawn for payment. On Tuesday, November 20th, the bank at V., in payment of the check, sent a worthless draft to the bank at O., which the latter refused to receive, and on the same day notified M., B. & Co. of that fact, and on the next day notified L. & S. The testimony showed that the bank at V. was in a failing condition when L. & S. drew and sent the check on it, and that they stated that fact to M., B. & Co. in the letter transmitting the check. In an action against the drawers, they demurred to the petition. Held that, if the facts stated in the petition were true, the Nebraska National Bank had shown due diligence, and was entitled to recover.

2. The facts as to the alleged neglect of the Nebraska National Bank in the selection of the payee of the check as its agent for the collection of the same should be set up by answer, and do not appear, from the statement in the petition, in such a manner as to defeat a recovery.

Error to district court, Douglas county; HOPEWELL, Judge.Savage, Morris & Davis, for plaintiff in error.

McGilton & Stoddaidt, for defendants in error.

MAXWELL, J.

A general demurrer to the petition was sustained in the court below, and the action dismissed. The petition is as follows: “The plaintiff states: (1) It is a corporation, organized under the laws of the United States relating to national banking associations, located and doing a banking business at Omaha, Neb. (2) The defendants G. W. Logan and H. L. Stanton are copartners doing business at Valparaiso, Neb., under the firm name of Logan & Stanton. (3) The defendant McCord, Brady & Co. is a copartnership doing business at Omaha, Neb. (4) On Friday, November 16, 1888, the defendant Logan & Stanton, at Valparaiso, Neb., drew their check as a copartnership for the sum of $481.75, payable to the order of McCord, Brady & Co., upon the State Bank of Valparaiso, Neb., about 70 miles from Omaha, and mailed the same to McCord, Brady & Co. on Saturday, the 17th of November, 1888. (5) On said 17th of November the said McCord, Brady & Co. indorsed said check, and sold and delivered the same to the plaintiff, who paid the full amount thereof to said McCord, Brady & Co. (6) On the said Saturday, the 17th November, 1888, the plaintiff sent said check by mail to said State Bank of Valparaiso, with instructions to remit the amount thereof to the plaintiff. (7) On Tuesday, November 20th, said State Bank of Valparaiso sent to plaintiff a worthless draft on the German National Bank of Lincoln for the amount of said check, which was received by the plaintiff on Wednesday, the 21st of November, 1888; but plaintiff refused to accept said draft, and notified McCord, Brady & Co. on the same day that payment had not been made on said check, and that plaintiff would look to them for payment thereof. That plaintiff also, on the 22d day of November, 1888, notified the said Logan & Stanton of the non-payment of said check, and that the plaintiff, as holder of said check, would look to them for the payment of the same,...