Pracht v. Oklahoma State Bank, 50614

• Decision Date: 27 March 1979
• Docket Number: No. 50614,50614
• Citation: 1979 OK 43,592 P.2d 976
• Parties: 26 UCC Rep.Serv. 141 Robert L. PRACHT, Appellant, v. OKLAHOMA STATE BANK, Appellee.
• Court: Oklahoma Supreme Court

Page 976

592 P.2d 976

26 UCC Rep.Serv. 141

Robert L. PRACHT, Appellant, v. OKLAHOMA STATE BANK, Appellee.

No. 50614.

Supreme Court of Oklahoma.

March 27, 1979.

As Corrected April 10, 1979.

Appeal from the District Court of Harper County; Merle Lansden, Judge.

Negotiable instruments' payee brought suit against drawee Bank to require drawee Bank to honor the instrument. Trial was restricted to the issue of time of presentment for purpose of determining the instrument's midnight deadline. On appeal the trial court's ruling is affirmed, finding no error in determination the item was returned prior to the midnight deadline and the drawee Bank not otherwise liable thereon under the instant record.

AFFIRMED.

James M. Boring, Board & Boring, Guymon, for appellant.

M. Marcus Holcomb, Holcomb, Holcomb & Harkins, Buffalo, for appellee.

HARGRAVE, Justice:

The Plaintiff, now Appellant, Robert L. Pracht, brought this action to recover $6,571.25 from Defendant-Appellee Oklahoma State Bank of Buffalo. The damages sought from the Defendant represent the amount of a check charged back to the Plaintiff's account on the basis that it was drawn on uncollected funds.

The Plaintiff deposited the questioned check in his account with the Defendant Bank on January 17, 1975. It was payable to his order and drawn by Northwest Feedyards on its account with the same bank. The next day, January 18, 1975, a Saturday, Plaintiff received a deposit slip and notice of payment of a note, both dated Friday. The following Monday the account of Northwest Feedyards showed a balance of over $300,000.00. The Bank posted several checks against Northwest's account and also took a set off on a note on Tuesday, the 21st. Additional disbursements from Northwest's account depleted the account to the point that there were insufficient funds to pay Dr. Pracht's item originally drawn to pay for three loads of corn purchased by the Feedyard. The check was returned on the 21st as drawn on uncollected funds.

The Plaintiff filed a petition against the Defendant Bank alleging that on the 17th of January, 1975 the Defendant credited his account with the amount of the check issued by Northwest Feedyard against its account in the Oklahoma State Bank. The Plaintiff plead that on the 21st day of January, the Defendant charged back the item and that the Defendant was unauthorized to charge his account for the amount of the check or to return the item, and sought judgment for the amount of the item plus attorney fees and costs. The Defendant's answer alleged the check drawn by Northwest for deposit to Plaintiff's account was presented after banking hours on the 17th and was thus deemed to have been presented on the next banking day, Monday the 20th. Therefore, the midnight deadline for the item was midnight on Tuesday, the 21st, and the check was properly returned before that deadline.

The cause was tried to the court with a jury sitting in an advisory capacity. The record contains no pretrial order inasmuch as no such order was filed in the cause. Be that as it may, pursuant to the pretrial hearing and decisions apparently made and agreed to therein, the court restricted the Plaintiff's case to a presentation of evidence relating to a single issue: Whether the questioned item arrived before or after that closing time. In his opening statement, and at other times during the trial, Plaintiff attempted to show that the $300,000 in the Feedyard's account were final credits and not provisional settlements, and that the account had at all material times sufficient funds for payment of Plaintiff's item. The court and opposing counsel took the position that the submission of only the single issue of time of presentment was agreed upon at pretrial.

An examination of the transcript of the trial reveals to this Court that all parties realized the issues had been narrowed by agreement of counsel and the court's pretrial order. Save a motion to set for pretrial, the record contains no document or minute order relating to the pretrial. The only indication in the record of the stipulations and orders made at pretrial and their effect on the subsequent proceedings is the colloquy between counsel and the court at trial referring to the effect of the pretrial order. From the statements in the record it is apparent the effect of that order was concededly sweeping in scope. The court's position was that pretrial proceedings had confined the scope of the trial to the single question of time of presentment and the subsequent midnight deadline. In reviewing the judgment of a court of general jurisdiction error is never presumed but must be affirmatively demonstrated. Raymer v. First National Bank of Berwyn, 184 Okl. 392, 87 P.2d 1097 (1939). Therefore, when an offered error is not made to affirmatively appear, this Court will not disturb the judgment and verdict of the lower court. Industrial Building & Loan v. Ashlock, 184 Okl. 551, 88 P.2d 874 (1939). The appellant bears the burden of demonstrating a sufficient record and applicable law to demonstrate in this Court that the trial court committed error since error in the lower court is not presumed. Seidenbach's v. Crown Drug, 191 Okl. 223, 127 P.2d 800 (1942); Hebble v. Abernathy, Howell & Abernathy, 180 Okl. 105, 67 P.2d 970 (1937). It has been broadly stated that error will never be presumed on appeal in a civil action but must be made to appear affirmatively or it will be presumed that no prejudicial error was committed by the trial court. Cox v. Warford, 34 Okl. 374, 126 P. 1026, 1027 (1912). In the light of this fundamental concept and in the absence of a pretrial order in the record, we will presume the trial court restricted the presentation of the case in accord with the pretrial order made in this action and therefore the Appellant's objection to this restriction in the light of the record presented on appeal is without merit.

Appellant asserts the court erred in finding the check was not presented for payment until after the close of business on Friday. In an action tried to the court with the jury waived, the finding of the court is as binding on appeal as the verdict of the jury and consequently if there is any competent evidence to support the finding it will not be disturbed on appeal. Tulsa Auto Dealers Auction v. North Side State Bank, Okl., 431 P.2d 408 (1967). There is competent evidence to support the finding that the check arrived at the bank after closing hours. The bank president testified to that effect. Additionally the party by whom the check was delivered to the bank testified that when he arrived at the bank the doors were locked and he was admitted after a locked door was unlocked. Other witnesses stated that the bank's computer was striking a balance at 3:00 P.M. Under such circumstances an allegation that the court erred in finding the check was presented after the close of business is without merit.

In several propositions the Appellant urges in substance that the bank accepted the check; thus was not free to return the item to the payor and charge it back to the Plaintiff-payee by virtue of the fact the item was delivered to the bank and a deposit slip was issued therefor. The deposit slip issued the Plaintiff specifically subjects...