Rogers Commission Company v. Farmers' Bank of Leslie
Decision Date | 30 October 1911 |
Citation | 140 S.W. 992,100 Ark. 537 |
Parties | ROGERS COMMISSION COMPANY v. FARMERS' BANK OF LESLIE |
Court | Arkansas Supreme Court |
Appeal from Searcy Circuit Court; George W. Reed, Judge; reversed.
STATEMENT BY THE COURT.
Plaintiff sued the defendant, alleging that on June 1, 1910, a check was drawn by Crisp & Burman upon the defendant for the sum of $ 117.07, which was on June 6, 1910, in due course of business presented to the bank for payment, at which time there was deposited in the bank in favor of the drawer of the check the sum of $ 300, sufficient to pay the check and discharge its obligation. That the defendant wrongfully refused to pay it and wrongfully procured the check to be protested, causing plaintiff to expend the sum of $ 4.15 protest fees. That said sum of $ 300 deposited in defendant's bank was the property of Crisp & Burman and subject at the time to said check of the firm. Prayed judgment for the amount of the check and judgment and protest fees. The answer denied liability and all the allegations of the complaint.
The testimony tended to show that the check was presented to the drawee bank on the 6th day of June; that it was stamped paid that the paid stamp was thereafter marked "Error," and on that day the check was duly protested for nonpayment and notices sent to all the parties. It further developed that the books of the bank showed on that date a credit of more than $ 300 to the drawers' account, subject to their check, and that the check sued upon was actually charged to the account of the drawers, and that other checks were thereafter presented and paid the same day to such an extent that the drawers' account was overdrawn more than $ 100 at the close of business.
The cashier explained that the check was erroneously marked paid and was not in fact charged against the drawers' account that there were no sums in the bank to the drawers' account, since the bank held a check in the cash drawer for $ 300 in its favor, at the time the plaintiff's check was presented, which was so held and not paid because of there being no sufficient funds. It seems the bank's $ 300 check was the individual check of Will Crisp, who, the cashier stated, was successor to the drawer firm, which he swore had been dissolved before the check was given. He stated further that the drawers had been allowed frequently to overdraw, and that the bank's book, as exhibited in the court, did not correctly reflect the account of the drawers of the check. The drawers of the check failed probably the next day after this transaction of presenting their check at the bank.
The testimony of the cashier was by no means satisfactory, and his disposition appeared to be to conceal rather than to reveal the true condition relative to the drawers' account, and presentation and refusal of payment of the check, if not a juggling of the facts and entries for the protection of the bank, after the failing condition of the drawers was discovered.
When the testimony was all in, plaintiff moved to amend its complaint by alleging the acceptance of the said check upon its presentation, by which the bank became bound to its payment to plaintiff, which motion was denied, and to the denial of which exceptions were properly saved.
The court instructed the jury, over plaintiff's objection, in effect, that if they should find from a preponderance of the evidence at the time the check was presented for payment that the drawer had an amount of money on deposit equal to or more than the amount of the check, they should find for the plaintiff, otherwise for the defendant, and that if they should find from the...
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