Scottsbluff Nat. Bank v. First State Bank

• Decision Date: 20 April 1956
• Docket Number: No. 33901,33901
• Citation: 162 Neb. 475,76 N.W.2d 445
• Parties: SCOTTSBLUFF NATIONAL BANK, a corporation, Appellant, v. FIRST STATE BANK, Gothenburg, Nebraska, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 445

76 N.W.2d 445

162 Neb. 475

SCOTTSBLUFF NATIONAL BANK, a corporation, Appellant, v. FIRST STATE BANK, Gothenburg, Nebraska, a corporation, Appellee.

No. 33901.

Supreme Court of Nebraska.

April 20, 1956.

Syllabus by the Court.

1. In order to constitute actionable negligence, there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and injury resulting from the failure. The petition must allege these essential elements, and the proof must support them, or there can be no recovery.

2. When the evidence with relation to negligence is conflicting or such that minds may reasonably reach different conclusions therefrom with regard to its existence, the issue should be submitted to the jury for its determination.

3. In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of inferences reasonably deducible from it.

4. Findings of a court in a law action in which a jury is waived have the effect of the verdict of a jury, and judgment thereon will not be disturbed unless clearly wrong.

Mothersead, Wright & Simmons, Robert M. Harris, Scottsbluff, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, Scottsbluff National Bank, brought this action against defendant, First State Bank, Gothenburg, Nebraska, seeking to recover damages allegedly caused by defendant's negligence in failing to collect or timely comply with instructions to wire nonpayment of a check drawn on defendant. The material issues were traversed by defendant's answer and plaintiff's reply, whereupon a jury was waived and the cause was tried to the court. Subsequently a judgment was rendered which found and adjudged the issues generally against plaintiff and in favor of defendant and dismissed the action at plaintiff's cost. Plaintiff's motion for new trial was overruled and it appealed, assigning in effect that the judgment was not sustained by the evidence but was contrary thereto and contrary to law. We conclude that the assignments should not be sustained.

The parties incidentally involved will be designated as follows: Oscar Linker, drawer of the check, as Linker; his wife, Armina Linker, as Mrs. Linker; Jack E. Mack, doing business as Western Construction Co., payee of the check, as Mack; First National Bank of Lincoln, plaintiff's correspondent, as Lincoln; the Omaha branch of the Federal Reserve Bank, as Omaha; and John B. Cook, Sr., as Cook.

The material evidence may be summarized as follows: On May 16, 1952, Linker gave Mack a check payable to Western Construction Co. and drawn on defendant for $4,233. Then there was only $193.87 in Linker's account, a fact well known by both Linker and Mack. The word 'Hold' was written in bold letters across the lower left-hand corner of the check at the time it was issued, and Mack then agreed with Linker that Mack would hold the check and could not cash it until he had proved that a steel building then being constructed by Mack under a written contract with the Linkers was clear of all liens upon which 'people were slapping liens * * * right and left.' Subsequently, the Linkers were required to pay off all such liens in an amount equal to or greater than the check, so that it was without any consideration.

Nevertheless, on May 27, 1952, 11 days after the date on which the check had been drawn, Mack endorsed it, 'Western Construction Co. Jack E. Mack' and presented it to plaintiff for payment or deposit. When so presented Mack or some other person had drawn several lines with a pencil and two different colors of ink through the word 'Hold' but such word and the alteration thereof were at all times entirely legible. Mack then had a small account in his own name and one in the name of the Western Construction Co. with plaintiff, who well knew that both such depositors were financially irresponsible. Therefore, plaintiff refused to give either one or the other absolute unconditional credit for the check involved or any other out-of-town check, a fact well known to Mack at all times. Thus, plaintiff issued a deposit slip to 'Jack E. Mack * * * May 27, 1952 * * * Checks as follows: Oacar Linker $4,233.00.' Such deposit slip also conditionally provided that Mack's deposit of such sum was dependent upon final payment of items received for deposit or collection at plaintiff's own office, and reserved plaintiff's right to timely charge back any item 'drawn against insufficient funds or otherwise not good or payable.' Further, such $4,233 item was encircled on Mack's original ledger account and a notation 'Hold $4,233 A.A.H.' was made thereon by A. A. Hulse, plaintiff's vice president.

Prior to presentation of the Linker check to plaintiff, Mack owed Cook a past-due debt of about $10,000. Cook was attempting to collect the debt, so Mack showed him the Linker check. However, Cook testified that he did not remember seeing the word 'Hold' on the check, although by casual inspection it was clearly observable, and denied that he had anything to do with attempting to strike it out. In that regard, Cook was a borrower from and a substantial depositor in plaintiff bank, having on deposit at all times here involved substantially more than $4,000.

Aftr Mack delivered the Linker check to plaintiff on May 27, 1952, it was mistakenly sent by plaintiff to the First State Bank of Scottsbluff instead of to defendant. It was then returned to plaintiff on May 28, 1952, and on that same date Mack gave Cook a check drawn upon plaintiff for $4,000, purportedly to apply on Mack's past-due indebtedness to Cook, who then took such check to plaintiff and presented it for payment. Thereupon plaintiff refused payment, telling Cook that payment 'would depend on whether we would have a wire by Monday night, or Tuesday night,' about the Linker check telling plaintiff 'whether the check was dishonored.' Plaintiff thus refused to give Cook 'unconditional credit for the $4,000' because 'We were waiting to find whether' the Linker 'check had been paid.' Monday night was June 2, 1952, and Tuesday night was June 3, 1952. Plaintiff's evidence was that it normally allowed 5 days for such checks to clear, although it realized that defendant might make mistakes as sometimes happened in banks, and that defendant might also have difficulty and delay in collecting the Linker check. However, plaintiff claimed that defendant should have wired Omaha within 5 days from May 28, 1952, if it had not been paid. In that regard, June 2, 1952, was the fourth banking day, and June 3, 1952, was the fifth banking day.

In that situation, plaintiff wanted to help its good customer Cook get in ahead of and have a preference in order to deceive and defeat the rights of any other creditors to whom Mack might in the meantime give checks on his account. Thus, on May 28, 1952, cooperating with Cook in order to accomplish that result, plaintiff wrote up a casheir's check for $4,000 payable to Cook. However, plaintiff refused to deliver such check to Cook but held that check in its own hands and under its control, telling Cook that plaintiff would deliver any pay the cashier's check only if the Linker check was first paid. In other words, it was distinctly understood and agreed between plaintiff and Cook, both when Cook presented Mack's $4,000 check to plaintiff which it refused to pay and when plaintiff wrote up the $4,000 cashier's check payable to Cook which plaintiff refused to deliver to him, that Cook was not to be paid the $4,000 unless plaintiff first received $4,233 on the Linker check.

Also, on May 28, 1952, plaintiff endorsed the Linker check 'Pay to the order of any bank, banker or trust co.' and forwarded it, together with other items, to Lincoln for collection and clearance, with instructions 'Wire non-payment of all items, $1,000.00 or over giving endorser.' Lincoln received the check May 29, 1952, and forwarded it to Omaha where, Decoration Day intervening, it was received May 31, 1952. Omaha then forwarded it, together with other items, to defendant with instructions 'Wire advice of nonpayment of all items of $1,000 or over.'

Sunday intervened, and defendant received the check on Monday, June 2, 1952. Defendant then mistakenly remitted the amount thereof, included in the total of other items, to Omaha by draft. Plaintiff, and defendant as well, concededly operated under a delayed posting system whereby items received for deposit or paid on one date were posted on the ledger accounts the next day. Thus, on June 3, 1952, it was discovered that defendant's employees had mistakenly charged the Linker check against the Linker Super Service account instead of against the Oscar Linker account upon which the check had been drawn. The former account contained ample funds with which to have paid the check, but the latter account had only $193.87 on deposit therein. Thereupon, defendant immediately corrected its records by crediting back the amount of the check to the proper account. Defendant then deducted that sum from its remittance of other items to Omaha, about which no complaint is here made.

In the meantime, the Linker check was never marked or cancelled 'Paid' and on June 3, 1952, immediately upon discovering its mistake and the insufficiency of the Oscar Linker account, defendant attempted to contact the Linkers. However, they were out of town and could not be found or contacted until after closing hours on June 4, 1952. At that time defendant was informed by Mrs. Linker that the Linker check had been conditionally delivered to Mack, that it was without any consideration, and had been materially altered, whereupon defendant was ordered to stop payment. ...