State Bank of Crete v. Smith

• Decision Date: 30 April 1890
• Parties: STATE BANK OF CRETE v. SMITH.
• Court: Nebraska Supreme Court

29 Neb. 434

45 N.W. 691

STATE BANK OF CRETE

v.SMITH.

Supreme Court of Nebraska.

April 30, 1890.

Syllabus by the Court.

1. A. S., on September 25, 1886, drew a check for $340.25 on a bank, which check was duly paid, but by mistake charged to the account of D. S. Soon afterwards the mistake was discovered, and, to correct it, D. S. was credited with the sum named. On October 2d thereafter, D. S. deposited $250 in the bank, and about that time received his bank-book, posted up to date. On the 5th of October of the same year, he appeared at the bank, and stated to the cashier, who had been absent, that a mistake had been made, in not giving him credit for the sum claimed. The cashier thereupon, without a full investigation, gave the defendant in error credit on his bank-book for the sum stated. The entry was afterwards erased. In an action by D. S. against the bank, he testified to making the deposit named, and also to the deposit of $250, and also from what source the latter sum had been received, but failed to show from whence he received the money in dispute. The bank employes having testified that no deposit was made by the defendant in error as stated by him, and explaining the mistake above set forth, it devolved on the defendant in error, in view of the fact that, from his previous deposit account with the bank, it did not appear that he had been in the habit of depositing on any day so much money as the aggregate of the sums named, to show from whence he derived the money in dispute he claimed to have deposited; the aggregate being an unusual deposit.

2. Where a verdict is against the clear weight of evidence, it will be set aside.

Error to district court, Saline county; MORRIS, Judge.Abbott & Abbott and Dawes & Foss, for plaintiff in error.

Hastings & McGintie, for defendant in error.

MAXWELL, J.

This action was brought by the defendant in error against the plaintiff in error to recover the sum of $345, which he claims to have deposited in the plaintiff in error's bank on the 2d day of October, 1886. On the trial of the cause a verdict was returned in his favor, upon which judgment was rendered.

The sole question presented is whether or not the verdict is against the clear weight of the evidence. The testimony tends to show that on the 25th of September, 1886, one A. Smith, who seems to have had an account with the bank, drew a check thereon for $340.25, which was duly paid, but by mistake was charged to Doede Smith. This mistake was soon thereafter discovered, and corrected by giving the defendant in error credit for the sum stated. On the 2d day of October, 1886, he (Doede Smith) deposited in the bank the sum of $250, and about that time his bank-book was posted up to date, and delivered to him. On the morning of the 5th of October, 1886, he went into the bank at the time it...