Southern Sand & Material Company v. People's Savings Bank & Trust Company

• Decision Date: 27 November 1911
• Citation: 142 S.W. 178,101 Ark. 266
• Parties: SOUTHERN SAND & MATERIAL COMPANY v. PEOPLE'S SAVINGS BANK & TRUST COMPANY
• Court: Arkansas Supreme Court

142 S.W. 178

101 Ark. 266

SOUTHERN SAND & MATERIAL COMPANY v. PEOPLE'S SAVINGS BANK & TRUST COMPANY

Supreme Court of Arkansas

November 27, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; affirmed.

STATEMENT BY THE COURT.

Plaintiff (appellee) brought suit against the defendant, alleging it was indebted to it in the sum of $ 530.21, with interest upon a check, as follows:

"Helena Ark., July 13, 1910. No. 2.

"The Southern Trust Company, of Little Rock, Ark.

"Pay to Helena Ship Yard and D. D. Co. or bearer ($ 530.21) five hundred and thirty and 21-100 dollars.

"Sou. Sand & Matl. Co.

"By Mord Roberts, Prest."

(Indorsed on reverse side) "Helena Ship Yd. & D. D. Co."

That the check was transferred by the indorser, Helena Ship Yard & Dry Dock Company, to the plaintiff for value and without notice, and on July 14, 1910, presented to the drawee and to the defendant, and payment was demanded and refused.

The defendant answered, denying any indebtedness, that it drew the check, as alleged, that same was transferred for value and without notice to the plaintiff, that said check was presented to the drawee, or that same was the property of plaintiff; admitted that it delivered said check to the dry dock company as alleged, but that it was cancelled and of no effect before delivered, for "that attached to and made a part of said check was a statement that it was executed under protest and duress;" that it could not be negotiated in its entirety without conveying notice of said defense, and, if the check was taken as alleged in the complaint, it was altered against the will of the defendant, and it is not bound thereon; alleged further that the plaintiff had knowledge of all the facts and circumstances attending the making of the check and the defenses thereto before it acquired same; alleged further a contract with the Ship Yard & Dry Dock Company for the construction of a sand boat, setting out the contract; that said company failed and refused to comply with the terms of the contract, to its damage in the sum of one thousand dollars, which it was bound to pay, according to the terms of said contract; that it was required to complete the boat according to specifications for another one thousand dollars, and "defendant says that said check with said statement attached was delivered to said company for and in consideration of the completion of said contract; that said contract was not complete, and that said check is without any consideration and is wholly void."

The bank, appellee, received the check from the payee, along with another check and a note of said drawer company for the balance due the Ship Yard Company under the terms of the contract, for the construction of the boat, discounted the note and credited the payee's account with the whole amount of the two checks, and the note less the discount. It forwarded the check on the 13th to the Bank of Commerce, at Little Rock, where same was presented to the drawee and payment refused, on account of payment having been stopped by the drawer, who telegraphed the drawee bank from Helena on the date of the issuance of the check, as follows: "J. R. Vinson, Southern Trust Company, Little Rock. My check on your bank, even date, amount $ 530.21, do not pay until I see you and explain. Mord Roberts."

The discount clerk in the appellee bank testified: "Am discount clerk for plaintiff bank, and have been in its employ for nine years. On July 13, 1910, our cashier was off on his vacation, and I was doing his work as well as my own. Late in the afternoon of that day C. L. Smith, the bookkeeper of the Helena Ship Yard & Dry Dock Company tendered me two checks drawn by the Southern Sand & Material Company, by Mord Roberts, President, one for $ 162.21, and the other for $ 530.21, and asked that they be credited to the account of the Helena Ship Yard & Dry Dock Company, which was done. These two checks were forwarded to Little Rock for collection through the Bank of Commerce on the same day. The one for $ 162.29 was paid, and the other returned. These two checks were taken by the plaintiff bank and the proceeds credited to the Ship Yard Company, and both checks became the property of the plaintiff bank in the due course of business and for valuable consideration, the Ship Yard Company having received credit for the amount called for in the check. Nothing has been paid on account of this check. Transfer was made on the afternoon of July 13, 1910. The whole transaction was with me, and I had no notice whatever of any defense or reason why the check would not be paid. If I had had, I would not have taken it. After the two checks mentioned above and the proceeds of the note for $ 1,773 had all been credited to the Ship Yard Company, the account was still overdrawn, and so remained.

"The check was taken and the amount credited without condition, and with no understanding or agreement that it should be charged back against the Ship Yard Company in case it was not paid. It was not taken for collection, but the proceeds were credited on the day taken, and there was no understanding that if it was not collected no credit would be given, or that the credit given would be cancelled. The check was taken in absolute discharge of so much of the debt of the Ship Yard Company as the proceeds would cover. There was no condition about it. The custom of the bank in regard to cashing checks varies with different people. In this particular instance we had handled paper belonging to the Southern Sand & Material Company and to Mord Roberts, and we believed at the time of the purchase that the check was absolutely good, and we took it with that understanding. There was nothing pinned to either the note or the check that the same was given under protest. When payment was refused, we assumed that it was not convenient just at that time for Mr. Roberts to pay the same, so we held it until the 10th day of October when we returned it to the Bank of Commerce at Little Rock, with instructions if not paid to deliver to J. W. House for collection or suit. No special instruction was given until that mentioned."

C. L. Smith, the bookkeeper for the Dry Dock Company, testified that he had personal knowledge of the transaction for which the check was drawn; that it was delivered to him on the day it was drawn, that it was indorsed by the firm and taken to the plaintiff bank, and the proceeds credited to the Ship Yard Company; that he had no knowledge that the check would not be paid, and did not give the bank any information to that effect. "Mr. Roberts, as president, had been giving the company checks prior to that time, and I assumed that this one, which was taken in the due course of business, was good."

John I. Moore, testified that he was a lawyer by profession, a stockholder and member of the board of directors of appellee bank, and employed by it when they required the services of an attorney. That he knew nothing of the presentation of the check for payment until it was returned unpaid, and was referred to him in October, when he directed that it be returned to the bank's correspondent at Little Rock with instructions, if not paid, to deliver to J. W. House for suit; that it had not been cancelled in October, and that so far as he knew it had not been yet; there was no memorandum attached to it in October, nor was there any memorandum attached to it when he saw it delivered to the representative of the Ship Yard Company on the 13th day of July; that he did not think any bank would accept a check with any such memorandum attached to it as was claimed to have been attached to this one; that he did not know that the bank or any of its officers had knowledge of any fact or circumstance that would have prevented the bank from accepting the draft in the usual course of business, but thought not; that he knew generally the contract between the appellant company and the Dry Dock Company, but not of its details; that Mr. Roberts was in his office on the 13th day of July, or the day prior thereto, in a bad frame of mind, about a matter of some painting and another small matter, which he claimed amounted to three or six dollars, which ought to have been done in order to complete his contract with the Ship Yard Company; that he and a member of the firm had a row over it, and Mr. Roberts came to see him to see what he could do about it; that he got Mr. Smith, the bookkeeper, to have the material put on the boat necessary to have the work done. Mr. Roberts agreed that he would have the work done and send the bill back for the costs, the work to be done en route to Little Rock. "That, as I understood it, settled up all the differences between Mr. Roberts and his company on the one part. And I assumed that when he made his explanations of his protest he was still treating the contract as having been fully complied with, but that the protest was made for the purpose of saving his rights if thereafter he found anything wrong with the job. I was not present when the check was delivered to the bank. I do not think that the bank had any agreement with reference to this check whatever."

Greenfield Quarles testified: "I am president of the People's Savings Bank & Trust Company, and was at the time of this transaction. The check was received on July 13, and the proceeds thereof credited to the Helena Ship Yard & Dry Dock Company, and the check forwarded that afternoon, together with another check for one hundred and sixty-odd dollars, to the Bank of Commerce at Little Rock, for collection. The check for one hundred and sixty-odd dollars was paid, and the one for $ 530.21 was returned unpaid. Thinking it would be paid later, we kept this check...