Perry State Bank v. Myers

• Decision Date: 28 May 1923
• Docket Number: 17
• Citation: 251 S.W. 685,159 Ark. 253
• Parties: PERRY STATE BANK v. MYERS
• Court: Arkansas Supreme Court

251 S.W. 685

159 Ark. 253

PERRY STATE BANK v. MYERS

No. 17

Supreme Court of Arkansas

May 28, 1923

Appeal from Perry Circuit Court; Richard M. Mann, Judge; affirmed.

Judgment affirmed.

G B. Colvin, for appellant.

There was no evidence of lack of diligence on appellant's part in the presentation of the check for payment.

The court erred in refusing appellant's requested instructions 2, 4 and 5. 5 Cyc. 504. Erred also in giving instructions numbered 2, 3, 4 and 5.

J H. Bowen, for appellee.

Appellant was negligent in presenting the check for payment, and its negligence caused a loss of the amount of it to appellee. 81 Ark. 127; 98 S.W. 956; 95 Ark. 111, 128 S.W. 554.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellant in the circuit court of Perry County to recover $ 240 for failing to collect a check for that amount drawn on the Bigelow State Bank and deposited with appellant on December 14, 1920. The suit was based upon the alleged negligence and carelessness of appellant in not collecting the check before the Bigelow Bank failed. It was alleged that the Bigelow State Bank did not become insolvent until December 22, 1920, and that, had appellant been diligent, it would have collected the check before it failed.

Appellant filed an answer denying the material allegations of the complaint.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a judgment against appellant for the amount claimed, from which is this appeal.

The cause was sent to the jury upon the sole issue of whether or not appellant used due diligence in attempting to collect the check, to which objection was made upon the ground that the instructions submitting the issue excluded the responsibility assumed by appellant in accepting the check for collection. Appellant proved by its cashier that it received the check subject to payment by the bank upon which it was drawn, and assumed no responsibility. The court admitted the proof with reference to the custom of the bank in receiving checks subject to payment by the drawee, and the manner in which presented to the drawee through corresponding banks, but excluded the evidence tending to show what responsibility if any, the bank assumed. Several instructions were asked by appellant and refused by the court, embracing the idea that the bank assumed no responsibility in accepting the check for collection. The court excluded the evidence relating to the assumed responsibility of appellant bank, and refused to give instructions embracing the idea that it assumed no responsibility, upon the theory that, while the bank might prove the custom and usage of itself and other banks in the collection of checks, the law fixes its responsibility in making the collections. The law requires a bank to use due diligence in collecting checks deposited with it for collection. What due diligence is depends on the particular circumstances in each case. At the conclusion of the testimony appellant asked for a peremptory instruction on the ground that the undisputed facts showed that it had used due diligence in attempting to collect the check. It is contended that the court committed reversible error in refusing to instruct a verdict...