Robinson v. Security Bank & Trust Company

• Decision Date: 22 December 1919
• Docket Number: 82
• Citation: 216 S.W. 717,141 Ark. 414
• Parties: ROBINSON v. SECURITY BANK & TRUST COMPANY
• Court: Arkansas Supreme Court

216 S.W. 717

141 Ark. 414

ROBINSON v. SECURITY BANK & TRUST COMPANY

No. 82

Supreme Court of Arkansas

December 22, 1919

Appeal from Phillips Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause remanded.

Sam Latkin, for appellant.

1. The court erred in directing a verdict for defendant. It was a case for a jury under the evidence and the law. 89 Ark. 368; 96 Id. 451; 107 Id. 158; 7 C. J. 639.

2. The law presumes that a deposit belongs to him who deposits it with the bank and in whose name it is entered. 177 F. 164; 120 Id. 526; 69 N.E. 215. A forged check does not protect the bank from a suit by the true owner and depositor. 57 N.Y.S. 525; 208 N.Y. 218.

P. R Andrews and J. G. Burke, for appellee.

1. The court properly instructed the jury to find for defendant. There was no conflict in the testimony and nothing for a jury to pass on. 104 Ark. 267.

2. Plaintiff could not recover under the facts. Silence for a long time will be deemed ratification of the wrongful acts of an agent of the principal. 50 Ark. 466; 83 Id. 444; 96 Id. 505-511. The court probably directed a verdict, as the money was deposited and withdrawn by the same person and Boldin told plaintiff he had deposited and withdrawn the money. The presumption is that the money was the depositor's. 2 Michie on Banks, etc., 924-7, 975; 22 Ore. 202; 29 P. 435; 45 F. 163; 4 N.E. 619. Under the facts there was no error in directing a verdict for defendant.

OPINION

HUMPHREYS, J.

Appellant instituted suit against appellee in the common pleas court of Phillips County, to recover $ 300, alleged to be due him for money deposited in appellee's bank to his credit. A pass book showing a deposit of $ 200 in his name on December 17, 1913, and a certificate of deposit for $ 100, deposited in his name on the 16th day of January, 1914, were made the basis of the suit.

Appellee filed answer, denying any liability on account of the alleged deposits. Upon hearing, a judgment was rendered dismissing appellant's complaint, from which an appeal was prosecuted to the Phillips Circuit Court, where a trial was had at the April, 1919, term thereof. At the conclusion of the evidence, the jury were peremptorily instructed to return a verdict for appellee, which was done; whereupon a judgment was rendered in favor of appellee, from which an appeal has been duly prosecuted to this court.

The evidence shows that two negroes, appellant and Will Boldin, raised a partnership cotton crop in 1913, on a farm belonging to Mr. Burke. Will Boldin took the cotton to Helena and sold it to Lee Pendergrass. Appellant instructed Will Boldin to deposit one-half of the proceeds to his (appellant's) credit in appellee's bank. On the first sale of cotton $ 200 was appellant's share, and Will Boldin deposited that amount to the credit of appellant, Gilbert Robinson, in the bank, and took a pass book showing the deposit, which he delivered to appellant. Out of the second sale of cotton, appellant's share amounted to $ 100, which was deposited by Will Boldin in the name of appellant, Gilbert Robinson, for which he took a certificate of deposit that was subsequently delivered to appellant. The first deposit was made on December 17, 1913, and the second on January 16, 1914. Thereafter, Will Boldin drew the money so deposited out of the bank on checks to which he had signed appellant's name without his authority or consent.

Appellant testified that, in the spring of 1914, he discovered that Will Boldin had drawn the money, and he made no mention to, or demand on, the bank for payment until 1915, some eight or nine months after he made the discovery; that Will Boldin told him he would replace the money, and requested him not to mention the matter to the bank, because it would ruin him; that he made no promise to withhold information nor any contract with Will Boldin to look to the crop of that year for the payment of the money; that he did not testify to that fact in the common pleas court.

Louis Solomon testified on behalf of appellee that appellant gave testimony in the common pleas court to the effect that when he made the discovery he (appellant) agreed to look to Will Boldin for the amounts the following fall when he gathered his growing crop. Louis Solomon also offered to testify that the cashier of appellee had told him, when Will Boldin made the deposit, he represented himself to be Gilbert Robinson, and that both Will Boldin and Gilbert Robinson were strangers to the cashier at that time. This testimony was objected to by appellant and excluded by the court, upon the ground that it was hearsay.

Appellant insists that the court erred in peremptorily instructing the jury, for the reason that the evidence tended to establish material issues in his favor. As the record now stands, after excluding the irrelevant testimony to the effect that Will Boldin represented himself to be Gilbert Robinson at the time he made the deposit, the undisputed evidence established the relationship of debtor and creditor between appellant and appellee. In other words, the evidence indicates that Will Boldin deposited the money with appellee in the name of Gilbert Robinson, according to Gilbert Robinson's instruction; that the bank issued a pass book and certificate of...