Decision Date | 02 April 1894 |
Citation | 19 S.E. 502,41 S.C. 177 |
Parties | SIMMONS HARDWARE CO. v. BANK OF GREENWOOD. |
Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Abbeville county; James F Izlar, Judge.
Action by the Simmons Hardware Company against the Bank of Greenwood.From a judgment for plaintiff, defendant appeals.Affirmed.
The charge of the court below was as follows:
"Mr Foreman and Gentlemen of the Jury: This is a very interesting case.It is not free from difficulty especially on the part of the court.I shall endeavor however, to give you my understanding of the law, and then leave the case with you.If I err in my judgment in regard to this case, the parties have another tribunal to which they can go, and correct me; and I am glad that it is so, because I have some doubts as to the correct principles upon which this case should be decided.It is new and novel.The plaintiffs bring this action to recover the amount due by the defendant bank on a check drawn by Jervey & Co. in favor of the plaintiffs for $163.97, dated January 2, 1892.It appears from the testimony in this case(and if I misstate it, gentlemen, I would like to be corrected) that Jervey & Co. were doing business in Greenwood, South Carolina, where the bank is located; that they did business with this bank, deposited their moneys there, and received moneys from the bank, for the purpose of carrying on their business; that the bank kept with Jervey & Co. two separate accounts, one headed 'Jervey & Co. C. A.' (this, the testimony shows, was intended to mean 'Cotton Account', and at the same time they kept another account, which was simply headed 'Jervey & Co.' and which has been designated in this case as the 'Merchandise Account.'Now, that was the course of doing business between Jervey & Co. and the Bank of Greenwood.The testimony shows that Jervey & Co. used two kinds of drafts (when they intended a draft to be paid on account of the merchandise account, they used one kind of draft, and, when on account of the cotton account, another kind of draft), and that the two accounts were kept separate.And the testimony further goes to show that there were no drafts drawn on the cotton account to pay amounts owing on the merchandise account.That was the manner of business between the two, I believe.Now, on the 2d of January, 1892, Jervey & Co. drew a draft on the bank for $163.97 in favor of the Simmons Hardware Company, and in due course of time that draft was presented at the Bank of Greenwood for payment, through the Boatman's Bank,--I think it is; and the testimony shows that the bank protested the draft, and sent it back, and in their protest they say that they protested it on the grounds that they had no funds with which to meet the draft.Afterwards the plaintiffs in this action took up the draft, and the draft was returned to them, and they have instituted this action now, against the bank, for the purpose of recovering the $163.97.Now, I charge you that if Jervey & Co. drew this draft in favor of the Simmons Hardware Co.(and you will determine that from the testimony), and that draft was presented to the Bank of Greenwood, and at that time the Bank of Greenwood had sufficient money to the credit of Jervey & Co. on the merchandise account to meet that draft, the plaintiffs would have good cause of action against the bank, and would be entitled to recover, because, when they deposited their money in the bank, there was an implied contract that the bank would disburse the moneys to the credit of Jervey & Co. as long as they had moneys there to meet their drafts.I charge you, further, that it does not matter if the cotton account was overdrawn at the time this check was presented.This did not warrant the bank to refuse payment, if they had a credit on the merchandise account, because that was not the course of dealing between them, and it is for you to say whether or not, at the time this draft was presented, they had sufficient funds on the merchandise account to meet this draft.If they had, the bank was bound to pay.If the bank had only $142 to the credit of Jervey & Co. on that account (merchandise), the bank was not required to honor that draft, and pay it.But the bank says, by reason of the mistake of the assistant cashier, the true state of the merchandise account of Jervey & Co. with the bank was not shown; that the apparent balance on this account in favor of Jervey & Co. was erroneous; that the bank did not actually owe Jervey & Co. on this account, at the time the check was presented, but $142.71,--an amount insufficient to pay the check.This mistake, however, was not discovered for some time after the refusal to pay the check, and after the check had been protested for want of funds to meet it, and after this action had been commenced.Now, did the declarations and statements of the bank as to the account of Jervey & Co. with the bank mislead the plaintiffs, and induce them to act differently from what they otherwise would have done, had not such statements been made?By their statements, the bank assumed the position of being a debtor to Jervey & Co. in a sum more than sufficient to meet the draft.This fact does not seem to be disputed.Now, if the plaintiffs, relying upon those statements of the officers of the bank, were induced to take a course different from that which they otherwise would have done, and have been misled, to their prejudice, it seems to me that there would be room for the application of the doctrine of estoppel.If you find this to be the state of facts, from the evidence before you, the defendant must take the consequences of the position it assumed.I must, therefore, in the view I take of the law, in case you find this state of facts to exist, charge you that the defendant bank is estopped to deny the reality of the state of things which it made appear to exist, and upon which the plaintiffs were led to rely.Sound ethics require that the apparent, in its effect and consequences, should be as if it were real, and the law so regards it.Now, gentlemen, that is my view of the law of this case, and it seems to me that that covers the whole case, according to the circumstances developed by the testimony.
"Mr. McGowan; May it please the court, I withdraw my requests to charge.
"The Court: I am requested to charge you, by the defendant, Bank of Greenwood, as follows: First.'That if the jury find that, at the time the check sued on was presented for payment, Jervey & Co., the drawers, did not have on deposit in said bank money enough to pay the check in full, the bank rightly refused payment, and plaintiff cannot recover.'Court: Of course.I have already charged you that, in effect, and you will take that as the law, under the charge, as I have already given it to you.Second.'That the bank was not obliged to make a partial payment on said check.'Court: I have, in effect, charged you that.Third.'That if the jury find that the account on the bank's books headed "Jervey & Co." and the account headed "Jervey & Co. C. A." were the accounts of the same parties, and that the money deposited on both accounts was the money of same parties, and the bank kept the two accounts separate only for convenience, then there was but one deposit account, and all money credited to Jervey & Co. was subject to any check drawn on said Bank by Jervey & Co.'Court: That would be so, gentlemen, if the facts warranted it.The testimony, as I understand it, tends to show a different state of facts.Fourth.'That, if the jury find that the total amount of the checks drawn by Jervey & Co. on said bank exceeded the total amount of money deposited by them, their account was overdrawn, and the bank rightly refused to pay the check sued on.'Court: That would be so, under the charge that I have given you, if it related to the merchandise account.Fifth.'That even if Jervey & Co. had a balance of money to their credit in said bank, and owed the bank, on past-due notes, an amount of money exceeding the amount of such balance, the bank rightly refused to pay said check, and had the right to hold such balance, and apply the same as a credit on said notes.'Court: I cannot so charge you.Sixth.'That if Jervey & Co. were insolvent, and made an assignment of their property for the benefit of their creditors within ninety days after the date of said check, and that said check was drawn to pay a past-due debt, or debt already existing, of said Jervey & Co., the attempted payment was wrong, and void, and plaintiff cannot recover the amount of said check.'Court: I cannot so charge you, because it is inapplicable to the facts of this case.Seventh.'That the rights of the plaintiff to payment of said check are subject to the rights of set-off which the bank had against Jervey & Co., and that any right to money on deposit transferred to the plaintiff by said check was transferred subject to all equities existing, at the time said check was drawn, between said bank and Jervey & Co.'Court: This is good law, perhaps, as a general proposition of law, but under the pleadings in this case, and undisputed facts, is inapplicable to the case, as I understand it.Eighth.'If the jury find that $142.71 was the actual balance to the credit of Jervey & Co. in Bank of Greenwood at the time the check sued on was presented, payment was rightly refused, and the plaintiff cannot recover.'Court: I have, in effect, charged you that, but you must remember the distinction that I have given you, gentlemen, with reference to the two accounts.Ninth.'The statement of J. W. Greene, cashier, that Jervey & Co. had sufficient funds in bank to pay the check sued on, made by him after said check was drawn, received by plaintiffs, and presented for payment, could not bind
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