Omaha National Bank v. Kiper

• Citation: 82 N.W. 102,60 Neb. 33
• Decision Date: 21 March 1900
• Docket Number: 9,206
• Parties: OMAHA NATIONAL BANK v. LOUIS KIPER ET AL
• Court: Supreme Court of Nebraska

82 N.W. 102

60 Neb. 33

OMAHA NATIONAL BANK v. LOUIS KIPER ET AL

No. 9,206

Supreme Court of Nebraska

March 21, 1900

ERROR to the district court for Douglas county. Tried below before SLABAUGH, J. Affirmed.

AFFIRMED.

Hall & McCulloch, for plaintiff in error:

The plaintiffs below distinctly fail to allege any damage resulting from the facts alleged, but simply allege another conclusion--that the defendant became and was lable to plaintiffs for the sum of said draft. That an execution had been issued and returned nulla bona, that the judgment remains unsatisfied, and that damage has resulted to the plaintiff, are three allegations that are necessary to enable the plaintiff to set out a prima facie case. The failure to state a material fact raises a presumption against the pleader that it does not exist. McClure v. Warner, 16 Neb. 447; Humphries v. Spafford, 14 Neb. 488; Burlington & M. R. Co. v. Kearney County, 17 Neb 511; Chicago, R. I. & P. R. Co. v. Shepherd, 39 Neb 523. It has been held many times by this court that the question of the sufficiency of the petition may be raised in the supreme court.

Edson Rich, contra, argued that the petition itself stated a cause of action; among other things, in substance, the insolvency of Dow, immediately following the loss of the draft by the bank, and the further fact that, had the plaintiffs in error advised the defendants in error on either the 14th day of November or the 3d day of December, 1894, of the non-acceptance and non-payment of said draft, the plaintiff could or would have either collected or secured their said claim. That the plaintiffs failed to collect the same was wholly caused by the negligence of the plaintiffs in error. This certainly states a cause of action. It is never necessary to allege the issuance of an execution, or what attempts might be made to enforce the collection of a judgment in a case of this kind; neither is it necessary to put the claim in judgment. All that is necessary is to allege the insolvency and to prove this insolvency by any competent proof.

Where one has been guilty of a negligent act, the injured party does not need to prove that he could have collected the claim or would have made it, because proof of this kind is impossible. Mound City Paint & Color Co. v. Commercial Nat. Bank, 9 Pac. [Utah], 709; 1 Daniel, Negotiable Instruments, sec. 327; Exchange Nat. Bank v. Third Nat. Bank 112 U.S. 276; 3 Sutherland, Damages, 17, 18.

OPINION

SULLIVAN, J.

The defendants in error, who will be hereafter referred to as the plaintiffs, brought this action to recover of the Omaha National Bank damages resulting, it is claimed, from the bank's negligence in connection with a certain draft sent to it for collection. The cause was tried without the aid of a jury, and resulted in a finding and judgment against the defendant for the amount claimed in the petition.

The material facts are here set out: On November 9, 1894, the plaintiffs, who were partners doing business in the city of Chicago under the firm name of Kiper & Sons, drew a sight draft on F. T. Dow, an Omaha merchant, and forwarded it to the defendant for collection. On November 12 the bank notified the plaintiffs by letter that the draft had been presented and that the drawee had requested twenty days further time in which to make payment. On November 14 the plaintiff wrote to the bank, saying: "We are agreeable to your holding draft for Mr. Dow, and he can pay the same in twenty days from 12th inst. as per his request. Please have him accept draft for payment then, and hold the same for collection." This letter was received by the defendant on November 15, and on the same day it again presented the draft to Dow and requested him to accept it. He refused to give an acceptance due in twenty days, but proposed to give one due in thirty days, and the proposal was agreed to by defendant. The bank retained the acceptance, but did not advise the plaintiffs of the action it had taken. On December 4 the plaintiffs wrote the defendants, making some inquiry about the draft, and in due time received a reply which, in substance, stated that it could not be found, and must have been returned to the drawer. On December 7 Dow failed in business, of which fact Kiper & Sons were not informed until December 15. On December 10 the bank, replying to a letter written by the plaintiffs on December 8, said: "In reply to your letter of 12-8-'94 regarding draft on F. T. Dow which we hold for collection. Mr. Dow when we presented the draft the second time Mr. Dow claimed a 30 day extension and we allowed him to accept it payable Dec. 15, '94, intending to write you to confirm our action which we must have neglected to do. We will use our best endeavors to collect on the 15th." On December 17 the draft was returned to Kiper & Sons, who on the same day wrote the defendant, saying: "Draft against Dow which you return to us unpaid we send to you again in this letter, as there must have been some misunderstanding regarding your giving Mr. F. T. Dow extension until Dec. 15. We wrote you Nov. 14th that you could give him twenty days from Nov. 12th, as per his request. We did not hear from you, and about the time the twenty days extension was up we wrote you, and you then wrote us that you had no collection from us against Dow. We could not understand this, as we sent you the collection again Nov. 14th. A few days ago we received a letter from you stating that you had given Dow until Dec. 15th for payment, and that you expected to collect the draft then and would remit. We are at a loss to understand why you returned the draft back unpaid, as you no doubt are aware that Dow has failed in business. We surely expect you to look after our interest in this matter, as you...