Patterson v. First National Bank of Humboldt
| Decision Date | 08 March 1905 |
| Docket Number | 13,724 |
| Citation | 102 N.W. 765,73 Neb. 384 |
| Parties | SARAH E. PATTERSON v. FIRST NATIONAL BANK OF HUMBOLDT |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county: ALBERT H BABCOCK, JUDGE. Reversed.
REVERSED.
J. H Broady, for plaintiff in error.
Francis Martin, E. A. Tucker and E. Falloon, contra.
This action was brought by Sarah E. Patterson, as plaintiff against the First National Bank of Humboldt, as defendant. The petition alleges that the plaintiff deposited the sum of $ 450 with the defendant on the 4th day of January, 1902; that the plaintiff requested its repayment about February 1, 1903, which request was refused, and that the defendant is indebted to the plaintiff for money had and received to that amount. The defendant pleaded payment. The plaintiff's reply was a general denial. Afterwards the plaintiff asked leave to file an amended reply, alleging in substance that on the 5th day of January, 1902, plaintiff and defendant agreed that $ 450 of the money on deposit should be changed from open account to time deposit for one year at five per cent; that the money was transferred, and that defendant pretended to give plaintiff the usual certificate of deposit for that amount, but that the paper was merely signed by F. W. Samuelson, who was the president of the bank; that the transaction was conducted on the part of the defendant by F. W. Samuelson, as president; that she was ignorant of the form of certificates of time deposits, and believed that she was dealing with the bank and getting a proper certificate or she would not have given the check for $ 450; that she did not discover the fraud until about July 1, 1903, when she offered to return the paper and demanded her money, which was refused. A motion was made by the defendant to strike all that part of the amended reply which in substance set forth fraud upon the part of the defendant, which motion was sustained. The only issue therefore presented by the pleadings was whether or not the $ 450 had ever been paid. It appears that in December, 1901, the plaintiff, Mrs. Patterson, received a draft for $ 500 from her father's estate and deposited the same in the bank; that at that time she had some conversation with Mr. Liggett, the cashier of the bank, with reference to the rate of interest the bank would pay upon a time deposit; that he told her that for a six months deposit the bank would pay 3 per cent. per annum, and if left for a year it would pay 4 per cent. per annum. She was dissatisfied with this rate of interest and did nothing with regard to the matter at that time, saying she would see Mr. Samuelson, president of the bank. Sometime between that and the 4th of January, 1902, she came to the bank again, saw Mr. Samuelson and talked with him. What was said in this conversation is in dispute. An offer to pay 5 per cent. was made to her, she claiming it was made by Samuelson, as president of the bank, while defendant claims her transaction was with Samuelson individually: She then returned home, but afterwards on the 4th day of January she sent her husband to the bank with a check for $ 450, payable to the First National Bank. Mr. Patterson saw Mr. Samuelson, handed him the check and received in return a time check in form as follows:
"To the First National Bank, Humboldt, Neb."
Her account was at once charged with the amount of the check, and the individual account of Samuelson was credited with it. A year after this time Mrs. Patterson took this time check to the bank, saw Mr. Samuelson and received from him $ 22.50 interest, together with a new time check in substance in the same form payable January 5, 1904. In July, 1903, Mr. Samuelson, who was largely engaged in enterprises outside of his banking interests, became financially embarrassed and was unable to pay his obligations. He sent a letter to each of his creditors, notifying them of this fact, and asking them to meet at the office of Francis Martin in Falls City, Nebraska, for the purpose of arranging his affairs so that his assets could be preserved for his creditors. A meeting was held on the 6th day of August, 1903. Mrs. Patterson received one of these letters, and Mr. Patterson attended the meeting, apparently taking no part therein except to listen to the conversation, and after his return home a demand was made upon the bank for the payment of the $ 450, which was refused. The question is whether the money was a time deposit or a loan to Samuelson individually. There is a sharp conflict in the testimony with regard to the transaction at the bank. If the story of Mr. Liggett, the cashier, Butterfield, the assistant cashier, and Mr. Samuelson is true, it is clear that the transaction was not with the bank, but with Samuelson as an individual; while if Mrs. Patterson and her husband are to be believed, the giving of the time check by Samuelson was a fraud upon her, and the bank is liable for the amount as a time deposit.
The first assignment of error is that the court erred in sustaining the motion to strike out part of the plaintiff's reply. The petition was for money had and received. The defendant admitted the receipt of the money and pleaded payment. The amended reply in substance admitted that the check for $ 450 was drawn upon the fund by the plaintiff as alleged in the answer; but further alleged that the check was given to transfer the $ 450 from an open deposit account in the defendant's bank to that of a time deposit in the defendant's bank, and that the time deposit had never been paid. The reply contained a number of other allegations, setting forth that the president of the bank, at the time the $ 450 check was drawn, gave plaintiff a paper signed by him individually, which she believed was a certificate of deposit, and thus perpetrated a fraud upon her.
We can see no departure in this reply from the cause of action stated in the petition. The subject matter of the action is the money which was deposited in the bank which the plaintiff claims has never been paid to her. When the bank set up payment by a check this was new matter, and the plaintiff was entitled in her reply to allege any facts which might exist negativing and disproving the payment by check alleged in the answer. The reply is not in any manner inconsistent with the petition. In Hoover v. Missouri P. R. Co., 16 S.W. 480, the facts were that a copartnership brought an action in the firm name; the answer set forth a release of the obligation, and the reply alleged that the release was a fraudulent contrivance collusively made between one of the partners and the defendant for the purpose of throwing the burden of the firm's indebtedness against the other partner. This was held to be a good plea to the release and properly set up in the reply. While the amended reply is not a model pleading by any means, we think that it was error upon the part of the learned trial judge to strike out all its allegations. It is...
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Patterson v. First Nat. Bank of Humboldt
...73 Neb. 384102 N.W. 765PATTERSONv.FIRST NAT. BANK OF HUMBOLDT.Supreme Court of Nebraska.March 8, Syllabus by the Court. 1. Where a petition is for money had and received, the answer pleads payment by check, and the reply alleges facts negativing and disputing the payment alleged in the answ......