The First National Bank of Girard v. Craig

• Decision Date: 01 November 1895
• Docket Number: 88
• Parties: THE FIRST NATIONAL BANK OF GIRARD, KANSAS, v. H. G. CRAIG
• Court: Kansas Court of Appeals

42 P. 830

3 Kan.App. 166

THE FIRST NATIONAL BANK OF GIRARD, KANSAS, v. H. G. CRAIG

No. 88

Court of Appeals of Kansas, Southern Department, Eastern Division

November 1, 1895

Error from district court, Crawford county; S. H. Allen, Judge.

December 4, 1895.

MEMORANDUM.--Error from Crawford district court; S. H. ALLEN judge. Action by H. G. Craig against The First National Bank of Girard, Kan. Judgment for plaintiff. Defendant brings the case to this court. Affirmed. The opinion herein, filed December 4, 1895, states the material facts.

Judgment affirmed.

Fuller & Randolph, for plaintiff in error.

J. Q Stratton, for defendant in error.

DENNISON J. All the Judges concurring.

OPINION

DENNISON, J.:

The facts as shown by the record in this case, briefly stated, are as follows: On January 6, 1889, the defendant in error, Craig, was indebted to the plaintiff in error in the sum of $ 900 and applied to it by letter for an additional loan of $ 700. He inclosed in said letter a note with the following instructions: "I send you as partial collateral a note secured by chattel mortgage for $ 432.25, due February 16, 1889. When due please collect, and apply proceeds to my paper.--H. G. CRAIG." Its receipt was acknowledged as follows:

"Yours of the 5th inst. received, with note of George Hill for $ 432.25 for collection and to be credited on your note to us. Inclose you blank note for $ 700 for your signature and return to us. Yours,

J. T. LEONARD, Cash."

A copy of said note is as follows:

$ 432.25. WALNUT, KAN., August 16, 1888.

Six months after date, for value received, I, as principal, promise to pay to the order of H. G. Craig, at the Bank of Walnut, Kan., $ 432.25, with interest thereon at the rate of 12 per cent. per annum from maturity, The drawers, indorsers and guarantors severally waive presentment for payment, protest or notice of protest of nonpayment of this note. Appraisement waived. GEORGE HILL.

This note secured by a chattel mortgage even date. Due February 16, 1889. No. 19735.

And it is indorsed upon the back as follows:

"Pay First National Bank of Girard or order.--H. G. CRAIG."

"Pay J. V. Pierce, Pt., or order, for collection, account of First National Bank, Girard, Kansas.--J. T. LEONARD, Cash."

Shortly before the maturity of the note the plaintiff in error made the last indorsement on said note, and sent the same to J. V. Pierce, president of the Bank of Walnut, Kan., for collection. The note was paid by Hill, the maker, on the 19th of February, 1889, and on the next day the Bank of Walnut failed, and neither the said J. V. Pierce nor the Bank of Walnut has ever paid the plaintiff in error or any one else the amount collected from Hill, nor any part thereof.

The case was tried by the court without a jury, and its findings of fact and conclusions of law are fully set out in the following journal entry, to wit (omitting title):

"Now on this day, this cause came on for decision and judgment on the evidence and arguments heretofore submitted; and the court, after careful consideration thereof, finds from the evidence that on the 6th day of January, 1889, the plaintiff indorsed and deposited in the bank of the defendant, for collection, a note, dated August 16, 1888, made by one George Hill, payable to the order of the plaintiff, at the Bank of Walnut, Kansas, for $ 432.25, due in six months, with directions to collect, and apply the proceeds on the indebtedness of plaintiff to defendant; that the place of payment of said note was written in said note by the plaintiff, and the words 'First National Bank of Girard, at its office in Girard, Kansas,' erased from the blank used; that at said time the plaintiff owed the defendant $ 900 and was negotiating for a further loan of $ 700; that a few days before said note of said Hill became due the defendant sent said note by mail to the Bank of Walnut, where the same was payable by its terms, indorsed by defendant as follows: 'Pay J. V. Pierce, Pres., or order, for collection, account of First National Bank of Girard, Kansas.--J. T. LEONARD, Cash.': that when said note became due it was paid by said Hill to said Walnut bank, and immediately thereafter said Walnut bank failed, and has never accounted to or paid either of the parties to this action any of the money so collected, and is wholly insolvent and worthless; that the sum collected, with 6 per cent. interest thereon from the date of collection, now amounts to $ 488.79, and that said defendant, before the commencement of this action, refused to apply said sum on the indebtedness of plaintiff to defendant, or to pay the sum to plaintiff; and that plaintiff has paid all sums that were owing by him to defendant at the time said sum was paid to said Walnut bank, with an express agreement between the parties that such payment should not prejudice his right in this action.

"I find as a conclusion of law, that in collecting said note the Bank of Walnut acted as the agent of defendant, and that the plaintiff ought to recover of the defendant the amount of said note, and 6 per cent. interest from the date of collection by the Bank of Walnut. It is therefore considered, ordered and adjudged by the court, that the plaintiff, H. G. Craig, have and recover of and from the defendant, the First National Bank of Girard, the sum of $ 488.79, together with his costs herein, taxed at $ , to all of which findings, conclusions and judgments the defendant excepted and...