State Bank of Beaver County v. Bradstreet

• Decision Date: 24 April 1911
• Docket Number: 16,406
• Parties: STATE BANK OF BEAVER COUNTY, APPELLEE, v. TOM BRADSTREET, APPELLANT
• Court: Nebraska Supreme Court

130 N.W. 1038

89 Neb. 186

STATE BANK OF BEAVER COUNTY, APPELLEE, v. TOM BRADSTREET, APPELLANT

No. 16,406

Supreme Court of Nebraska

April 24, 1911

APPEAL from the district court for Hall county: JAMES R. HANNA JUDGE. Affirmed.

AFFIRMED.

Harrison & Prince, for appellant.

Bayard H. Paine, contra.

OPINION

FAWCETT, J.

The petition alleges that one J. A. McMillan presented to plaintiff bank the following draft: "Beaver, Utah, 11-6 1906. Tom Bradstreet; Pay to the order of State Bank of Beaver County $ 250, two hundred and fifty 00-100 dollars"--and requested plaintiff to cash the same which plaintiff declined to do; that McMillan then requested the draft to be forwarded for collection; that thereafter McMillan returned to plaintiff bank, after said draft had been forwarded for collection, and again requested plaintiff to cash the same, which plaintiff refused to do unless the draft should first be accepted by the defendant upon whom it was drawn; that at the request of McMillan plaintiff sent a telegram to defendant, asking him if he would pay the draft, and received from defendant the following: "November 7, 1906. To Beaver County State Bank, Milford, Ut. Will pay McMillan's draft on me two fifty for horses. T. Bradstreet"; that plaintiff, relying upon this acceptance, paid McMillan the full sum of $ 250 and became the owner of the draft; that the draft, after being forwarded through plaintiff's regular correspondents, was in due and regular course of business, upon the 14th day of November, 1906, presented to defendant for payment and payment was refused; that said draft was thereupon protested for nonpayment at a cost of $ 3.10, which the plaintiff was compelled to pay--and prays judgment for the face of the draft, with interest and protest fees.

The answer admits the corporate capacity of plaintiff, the drawing of the draft by McMillan, the sending of the telegram by defendant, and his refusal to pay the same, and then proceeds to set out the business relations existing between defendant and McMillan, and a custom under which defendant from time to time made loans to and accepted drafts made by McMillan; that the acceptance in question was a conditional acceptance, which did not bind defendant unless McMillan used the proceeds of the draft for the purchase of horses to be shipped to defendant; that the money was not used for such purpose, but was used for other and different purposes, and that all of these things were "well known to plaintiff, or could, by the exercise of ordinary care, have been known to plaintiff." The reply was a general denial. Trial to the court. Judgment for plaintiff. Defendant appeals.

The question as to whether or not the facts alleged by defendant as an affirmative defense were established upon the trial could only be determined by an inspection of a bill of exceptions. We find, upon examination, that there is attached to the transcript a...