Townley v. Exchange Nat. Bank of Tulsa
| Decision Date | 17 March 1925 |
| Docket Number | 13337. |
| Citation | 234 P. 574,108 Okla. 144,1925 OK 227 |
| Parties | TOWNLEY v. EXCHANGE NAT. BANK OF TULSA. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the payee of a check deposits same and receives credit on his account in the bank on which it is drawn, and at the time of receiving such credit knew the custom to be that such credit was given on condition the drawer had to his account sufficient funds to meet the check, or should have known thereof, the credit is conditioned by the custom, and same may be charged back against the account of the depositor thereunder.
Appeal from District Court, Tulsa County; Val Jean Biddison, Judge.
Action by Thomas L. Townley against the Exchange National Bank of Tulsa. From a judgment for defendant, plaintiff appeals. Affirmed.
Kleinschmidt & Johnson, of Tulsa, for plaintiff in error.
Jno. Y Murry, Chas. E. Bush, and R. E. Thompson, all of Tulsa, for defendant in error.
The plaintiff in error, as plaintiff, sued the defendant in error, as defendant, to recover $1,000. His cause of action was, in brief, the outgrowth of a certain check drawn in favor of the plaintiff by E. Westerman. The check was dated January 23, 1920. It seems to have been given as a part payment on an intended purchase of a piece of real estate located in Tulsa, which was never consummated.
The drawer of the check and the payee thereof both carried accounts in the defendant bank. The 21st day of February 1920, was Saturday, and shortly before noon and at a time when there was a great rush of depositors, the plaintiff with his passbook presented this check to teller No. 5, and the same was credited on his passbook. Monday following, under the statute, was celebrated as a holiday, and Tuesday, the 24th, the plaintiff was formally notified that the drawer of the check had insufficient funds, and that the check was charged back to the plaintiff. Later, as pleaded, on the 25th of May plaintiff made formal demand on the bank for $1,000 on the theory that on the deposit of the check the relationship of depositor and creditor arose, which demand was refused, resulting in plaintiff filing the suit.
On accepting a deposit, that the law usually creates the relation of debtor and creditor is not in dispute in this case, and that, when such deposit is made in the form of a check drawn upon the bank by another depositor, and there is no want of good faith on the part of the depositor, the giving to the depositor of credit to the amount of the check precludes the bank from recalling or repudiating the credit. 3 R. C. L. 153; 7 Corpus Juris, 635; First National Bank of Cincinnati v. Burkhardt, 100 U.S. 686, 25 L.Ed. 766; City National Bank v. Burns, 68 Ala. 267, 44 Am Rep. 138; Woodward v. Saving & Trust Co., 178 N.C. 184, 100 S.E. 304; American Exchange National Bank v. Gregg, 138 Ill. 596, 28 N.E. 839; Wasson v. Lamb, 120 Ind. 514, 22 N.E. 729, 6 L. R. A. 191, 16 Am. St. Rep. 342; Pollack v. National Bank of Commerce, 168 Mo.App. 368, 151 S.W. 774.
On the strength of the same authorities, we think that it is equally well settled that such acceptance, to constitute this relation of debtor and creditor as set out above, must be an unconditional one, and that where a custom is known to a depositor, or so well established it should be known to him, such checks are accepted by the bank on condition that an examination of the drawee's account discloses sufficient credit to warrant the payment of the check by the bank, that such conditional acceptance, under said custom, does not create the relation of debtor and creditor until the custom has spent itself, and the bank has had the opportunity to determine whether the check should be honored or charged back against the deposit of the customer.
In the case of Pollack v. National Bank, supra, it was said:
"Where a depositor of a bank presented to it a check for deposit, with knowledge of the custom of the bank to take checks and defer payment for a reasonable time until the bank ascertained whether there were sufficient funds of the drawer to pay it, the depositor was estopped from asserting that the bank giving him credit for the deposit could not, on finding insufficient funds to pay the checks, charge the depositor's account with the amount thereof."
That such custom and established usage on the part of the defendant bank, as well as other banks in the city of Tulsa, existed was known to the plaintiff, or should have been known to him, was the defense pleaded by the bank. The defendant bank further pleaded that on the passbook of the plaintiff, on which he received the credit, was printed:
That such custom or usage as to such checks obtained was shown by the evidence, not only in the conduct of the business of the defendant bank, but in the other banks of said city. The evidence showed that the drawer, Westerman, on the date said check was presented had a credit on his account in said bank in a sum less than $10.
It was in testimony that plaintiff returned to the bank after the noon hour, when most of the officers and employees were gone (the bank closing at noon on Saturday), and made inquiry as to whether or not the check deposited in...
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