Overmoe v. J. C. Penney Company, a Foreign Corporation
| Decision Date | 28 February 1925 |
| Citation | 202 N.W. 648,52 N.D. 335 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Lowe, J.
Defendant appeals from judgment in plaintiff's favor and from order denying motion for new trial.
Reversed and remanded.
Reversed and remanded for a new trial.
Francis Murphy, for appellant.
Halvor L. Halvorson, for respondent.
The complaint in this action alleges that on or about the 25th day of July, 1922, the defendant, by and through its agents and officers, having in its possession a check dated December 24, 1920, signed by the plaintiff, in the sum of $ 39.90 payable to the defendant, and drawn upon the First Farmers Bank of Minot, and then and there knowing that said check had been paid by the plaintiff in full to the defendant, the said defendant altered said check by erasing the name of the said First Farmers Bank of Minot and inserting in said check the name of Second National Bank, and that said defendant presented same to the said Second National Bank at Minot and cashed the same and had the same charged against the account of plaintiff, and the plaintiff, by reason thereof, had several checks refused by said Second National Bank, on the ground that there were not sufficient funds to meet such checks, and by the depletion of his account the plaintiff was injured in his reputation, his credit questioned, and his standing lowered in the estimation of friends and business associates, causing the plaintiff grievous mental suffering and injury. The defendant answered by a general denial except admitting that defendant is a corporation.
The case was submitted to the jury upon instructions authorizing special findings and a general verdict. The jury found and assessed the actual damage at $ 650.00, exemplary damages at $ 250.00, and returned a general verdict for the sum of $ 900.00. A motion was made by defendant's counsel for judgment notwithstanding the verdict and also a motion for a new trial, both of which were overruled. The defendant has appealed to this court, alleging twenty-five different errors, only a few of which are urged in the defendant's brief on appeal. First, is the insufficiency of the evidence to justify the verdict.
The plaintiff, in his direct testimony, states in substance as follows: On the 24th day of December, 1920, I bought a suit of clothes from the defendant for the sum of $ 39.90. I had at that time an account in the First Farmers Bank of Minot. I had no blank checks with me on that bank, and the defendant, having a blank check book on the Scandinavian American Bank, I erased the name of the Scandinavian American Bank and wrote in the First Farmers Bank, and then filled out a check for $ 39.90, and delivered same to the defendant. On the evening of the same day, Mr. Clapp, who was then manager of the Penney store in Minot, called me on the telephone and said that the First Farmers Bank had failed and that the check was no good. I said to him that I would make the check good and he said that it was not necessary as the amount that I owed the store could be deducted from the amount the store owed me for decorating. Sometime in January, I went into the store to settle with Mr. Clapp, and the $ 39.90 was taken out of the amount that the store owed me for decorating and the balance was paid to me by check. Sometime in July, this check for $ 39.90 showed up charged against my account in the Second National Bank. I went to see Mr. Bartholomew, and asked him how it could be that check came over at this time. He asked me if I owed the money and I explained to him just how the matter was. I told him the transaction with Mr. Clapp and how it was taken out of my contract for the work I done there. I asked him how this check come to come through the Second National Bank, and he told me at the time that he changed it from the First Farmers Bank to the Second National Bank. He figured that the check should be paid. I did state to him that it was irregular and he said he had done that often. I then went to the Second National Bank and I talked to Mr. Dahl, who was one of the employees of the bank. The check was charged to my account in the bank. This check, Exhibit 1, came back to me with the vouchers from the Second National Bank, and was charged against my account in the bank. I have had the check, Exhibit 1, in my possession, or in the possession of any attorney, ever since it was returned with the vouchers. Mr. Bartholomew told me he had cashed the check at the Second National Bank and it was then I went to the bank and had a talk with them. I talked with Mr. Tooley at that time, an officer and employee. After the 25th of July, after this check had been cleared, I went to Mr. Bartholomew, the manager of the Penney store, and had a talk with him, the second time, and asked him what he was going to do about the check, and he told me he was not going to do anything about it; they had their money and that was all; that is about all the conversation we had at that time. The cashing of the check against my account caused other checks that I had given to be refused by that bank. I recollect some of the checks that were refused by the bank at the time this check was charged against my account; one check was payable to St. Joseph's Hospital,--that was refused; one check given to Dr. Ransom,--that was refused; one check given to the Economy Department Store,--that was refused. The cashing of this check against my account at the Second National Bank caused other checks to be refused by the bank.
On cross examination, the plaintiff testifies: I gave the check to St. Joseph's Hospital on the 19th of August,--it was for $ 40.00; I gave a check the same day to Dr. Ransom for $ 10.00, and about three or four days later, August 22nd or 23rd, 1922, I gave a check for $ 6.00 to the Economy Department Store. I go to the bank the last of the month and find the balance; get back checks and statements; that has been my practice for a number of years to get the statement at the last of the month; unless I have been drawn up, I sometimes ask for my balance at other times. I presume I got my bank balance from the Second National Bank on August 1, 1922. When I do, I check them over.
Q. Then you knew on August 1, 1922, before you had given these checks to the St. Joseph's Hospital, Dr. Ransom, and the Economy Store, that this check had been cashed by the Penney Company, did you not?
A. I did not know until I got my statement from the bank.
Q. Did you get your statement the 1st of August?
A. I got my balance some time in the latter part.
Q. When?
A. I called for my balance at the time these checks were turned down and I got it again of course the 1st of August.
Q. Balance for what?
A. In the bank.
Q. When was the last time you got it before that?
A. I presume the last of the month previous.
Q. What month?
A. In July.
Q. End of July?
A. Yes, sir.
Q. You think you got your bank statement in the end of July?
A. I think so.
Q. Was this check in that balance? (Referring to Exhibit 1, a check for $ 39.90.)
A. Exhibit 1 was.
Q. Exhibit 1, was that in the balance that you got at the end of July?
A. Yes sir, I think it was.
Q. Then you knew it had been cashed at the end of July?
A. I knew it had been cashed when I got my statement again the first of the month.
Q. First of the month?
A. On the 1st of August.
Q. Yes, you knew it when you got the statement, you knew it was cashed, didn't you?
A. Yes.
Q. When that check was returned to you, you knew it had been cashed then?
A. Surely.
Q. Were you greatly worried and concerned over these checks being turned down by the bank?
A. Yes, I was. It was a time of the year when in our line of work we did not have much work and I was in great need of whatever I had at that time.
Q. And it did greatly inconvenience you?
A. Yes, it did.
Q. And happened during the time when you needed the funds for doctor bills and hospital bills?
A. Yes sir.
Q. You have always paid your bills?
A. Yes sir.
Q. You have always enjoyed a reasonable amount of credit with the business men and merchants?
A. Yes sir.
This is practically all of the plaintiff's testimony upon the subject. Mr. Bartholomew was called for cross examination, under the statute, and stated that he became manager of defendant's store at Minot, in January 1922. That when he came to the store there was some twenty-five checks that were carried in the cash. Among them was one for $ 39.90 signed by the plaintiff, Mr. Overmoe. He denies specifically that he told the plaintiff that he changed the check from the Farmers State Bank to the Second National Bank; denies that he had the check at all; and states that the...
To continue reading
Request your trial