Syllabus by the Court.
It is
ordinarily incumbent on one relying on a special custom as a
basis of recovery or defense, not only to allege and prove
such custom, but to prove that the person sought to be bound
thereby had actual knowledge thereof and contracted with
reference thereto.
Where
an officer's duties are prescribed by statute, usage will
not excuse their discharge in a different manner; so proof of
custom is not permissible to enlarge the powers of an officer
whose authority is defined by statute, for a custom or usage
repugnant to the commands of a statute will not prevail
against the same.
A
county treasurer's sole authority for the deposit of
public moneys in banks is to be found in sections 6191-6196
Comp. St. 1922, and the directions, limitations and public
policy evidenced thereby must be complied with by such
officer and all who deal with him with reference to such
public funds.
Under
the terms of the statutes referred to, general deposits alone
are authorized to be made in county
depositories by county treasurers, and such, the evidence
discloses, were made in the instant case.
Appeal
from District Court, Buffalo County; Hostetler, Judge.
Action
by Jay J. Shambaugh, as County Treasurer of Buffalo County,
against the City Bank of Elm Creek. Judgment for defendant,
and plaintiff appeals. Reversed and remanded.
E. G.
Reed, for appellant.
John A.
Miller and E. L. Randall, contra.
Heard
before DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ., and REDICK
and SHEPHERD, District Judges.
OPINION
EBERLY, J.
This is
an action at law instituted by the county treasurer of
Buffalo county against the City Bank of Elm Creek. It appears
conceded in the record that the City Bank of Elm Creek was a
county depository of Buffalo county, duly designated as such,
and had given the bond as provided by law to secure the
deposit of public funds. Issues were joined, a jury waived,
and trial to the court on an agreed stipulation of facts. The
district court found for defendant and dismissed
plaintiff's action. Plaintiff appeals.
The
basis of the action was a deposit of public funds made by the
plaintiff in his official capacity on the 11th day of May,
1927, which was represented by a check of $ 5,000 drawn by
the plaintiff in favor of the defendant and upon the Farmers
State Bank of Kearney, likewise a county depository of
Buffalo county, and in which public funds were then on
deposit, more than sufficient to cover the aforesaid check.
The correct statement of facts upon which, in connection with
the pleadings in the case, the cause was determined in the
court below is as follows:
"It
is stipulated and agreed that the only item in dispute in
this case is the item of May 11, 1927, of $ 5,000; that if
the same is recovered the rate of interest is two per cent.
from May 11, 1927.
"That
on May 11, 1927, the plaintiff drew a check on the Farmers
State Bank of Kearney, Nebraska, for $ 5,000 and sent the
same by mail to the defendant for credit as a deposit of public funds belonging to Buffalo county; that
plaintiff had sufficient funds in the Farmers State Bank to
pay the same, and said bank was a solvent bank; that the same
was received at Elm Creek in the afternoon of said day by the
defendant, and as a receipt the defendant issued a duplicate
deposit ticket, a copy of which is set out in full in the
reply of the plaintiff filed in this case, which duplicate
deposit ticket was received by the plaintiff on May 12, 1927,
and retained by him in the files of his office, he making no
reply thereto; that copy of this duplicate deposit ticket is
as follows:
"Deposited
in Old City Bank of Elm Creek, Acc't, County Treasurer,
J. J. Shambaugh.
"Checks
and cash items are credited only subject to payment. This
bank in making collections received from its customers,
whether same be placed to their credit or not, acts only as
their agent, and assumes no responsibility except to exercise
the same diligence it uses in making collections of its own.
"Elm
Creek, Nebraska, May 11, 1927.
"Currency
"Silver
"Checks
Far. State Kearney $ 5,000.00.
"By
mail Thank you. L. M. Bliss
"Bliss
Total deposit ."
That a
copy of the check is set forth in the reply filed in this
case and is as follows:
"Farmers
State Bank No. 126
"J.
J. Shambaugh, Treasurer Buffalo County, Neb.
"Kearney,
Neb., May 11, 1927.
"Pay
to the order of City Bank, Elm Creek $ 5,000.00
Exactly
Five Thousand Dollars, Exactly, Exactly, Exactly, Exactly.
Deposits of this bank are protected by the depositors'
guaranty fund of the state of Nebraska.
"To
Farmers State Bank, Kearney, Neb., 76-41
"J.
J. Shambaugh, Treasurer, By ,
"Deputy
Treasurer."
That said check bears the following indorsements
thereon, to wit:
"Farmers
State Bank--Paid May 13, 1927, Kearney, Nebraska.
"Pay
to the order of any Bank or Trust Co. All prior indorsements
guaranteed. The City Bank of Elm Creek, Nebraska--76-878,
Earl E. Bliss, Cashier.
"The
City National Bank, Teller 1, May 13, 1927, Kearney,
Nebraska.
"Pay
any bank or banker. All prior indorsements guaranteed. May
12, 1927. Stock Yards Nat'l Bank, 27-6 South Omaha, Nebr.
27-6. W. H. Dressler, Cash."
"That
the defendant bank in this case had for many years prior
thereto, and then had, for its correspondent the Stock Yards
National Bank of Omaha, Nebraska, and on the 11th day of May
1927, together with other items of exchange mailed said check
to the Stock Yards National Bank of Omaha for collection and
credit; that the same was received by the Stock Yards
National Bank on the 12th of May, 1927; that on the same day
the Stock Yards National Bank sent this check with another
item to City National Bank in Kearney for collection and
remittance; that on the 13th day of May, 1927, the City
National Bank in Kearney took the check of $ 5,000 in
dispute, together with other checks it held drawn upon the
Farmers State Bank of Kearney, and met with the Farmers State
Bank of Kearney to make a clearing, that is, an exchange of
checks, and delivered to the Farmers State Bank of Kearney
all the checks it then had on the Farmers State Bank of
Kearney, and received from the Farmers State Bank what checks
the Farmers State Bank had on the City National Bank, and was
then indebted to the Farmers State Bank for which difference
the City National Bank then gave the Farmers State Bank a
draft on Omaha; that after making the clearing the City
National Bank in Kearney on May 13, 1927, drew a draft on the
Omaha National Bank of Omaha in favor of the Stock Yards
National Bank of Omaha for the total amount of the items
included in the remittance letter of May 12,
1927, above referred to, and mailed the same to said bank;
that the draft was received by the Stock Yards National Bank
at Omaha on May 14, 1927, and presented by said bank at the
Omaha clearing house on May 14, 1927, and payment refused.
"That
the City National Bank in Kearney has suspended business and
was taken possession of by a national bank examiner under the
direction of the comptroller of the currency at about 8
o'clock a. m. on May 14, 1927, and on said day a receiver
was appointed and has ever since been in the possession of a
receiver appointed by the comptroller, and then was and is
now insolvent; that on the morning of May 14, 1927, and
before the opening hours for banks in Omaha, the Omaha
National Bank was notified by the receiver to pay no drafts
drawn on it by the City National Bank in Kearney, and the
payment of said draft drawn by City National Bank in Kearney
was by the Omaha National Bank refused and is still unpaid.
That on May 13, 1927, when the City National Bank in Kearney
issued its draft of $ 5,025 to the Stock Yards National Bank
of Omaha upon the Omaha National Bank it then had on deposit
in the Omaha National Bank $ 7,494.18; and the Omaha National
Bank when notified by the receiver to pay no drafts refused
to pay said draft of $ 5,025 and at once offset said balance
of $ 7,494.18 against bills payable of City National Bank in
Kearney, which it, the Omaha National Bank, then held against
the City National Bank in Kearney, and the Stock Yards
National Bank at once notified the City Bank of Elm Creek
that no funds had been received by it on account of said $
5,000 check and that it had no credit for the same. That upon
receipt of said notice the City Bank of Elm Creek at once
notified the plaintiff that it had been unable to make
collection of said check, and that the amount was charged
back to his account, and that the books of the City Bank of
Elm Creek show nothing due to plaintiff. That on the books of
plaintiff he is carrying said amount as being a deposit in
City Bank of Elm Creek. That on the 13th of
May, 1927, when the Farmers State Bank of Kearney received
said check of plaintiff from City National Bank in Kearney it
charged the same to the account of plaintiff, so that the
credit of plaintiff in the Farmers State Bank of Kearney was
reduced in the sum of $ 5,000.
"That
the Stock Yards National Bank of Omaha used proper care in
handling said item. That the plaintiff in this action was a
depositor in the City Bank of Elm Creek from the time he
began his term of office in January, 1927, up and until the
time of the matters involved in this action, and that all
items deposited as set forth in his petition except this item
of $ 5,000 were by plaintiff checked out of said defendant
bank before this suit was begun. That the plaintiff made
demand on defendant for...
