W. Wheeled Scraper Co. v. Sadilek

• Decision Date: 07 January 1897
• Citation: 50 Neb. 105,69 N.W. 765
• Parties: WESTERN WHEELED SCRAPER CO. v. SADILEK.
• Court: Nebraska Supreme Court

50 Neb. 105

69 N.W. 765

WESTERN WHEELED SCRAPER CO.

v.SADILEK.

Supreme Court of Nebraska.

Jan. 7, 1897.

Syllabus by the Court.

1. A customer's bank check is not intended for circulation as a medium of exchange, and should be presented for payment with the dispatch, consistent with the circumstances of the case and the transaction of other commercial business. Bank v. Miller, 55 N. W. 1064, 37 Neb. 500.

2. A bank which undertakes the collection of a customer's check is guilty of negligence in sending it for payment direct to the drawee bank, provided there is in the same town another bank in good standing.

3. A bank receiving for collection a customer's check is required to pay the same upon the receipt thereof during business hours, or to promptly give notice of its dishonor, in order to charge the drawer and indorsers thereof.

4. Held, from an examination of the evidence, that prejudice to the defendant, as drawer of the check which is the subject of controversy, will be presumed from the failure to give notice of its dishonor, there being to his credit therein sufficient funds for its payment, the drawee bank having in the meantime become insolvent.

5. The authority of a county treasurer to deposit for safe-keeping in bank the funds intrusted to his care cannot be questioned in a strictly collateral proceeding.

Error to district court, Saline county; Hastings, Judge.

Action by the Western Wheeled Scraper Company against F. J. Sadilek on a check. From a judgment for defendant, plaintiff brings error. Affirmed.

Hastings & McGintie, for plaintiff in error.

F. I. Foss and W. R. Matson, for defendant in error.

POST, C. J.

This was an action by the Western Wheeled Scraper Company, hereafter called the “plaintiff,” against F. J. Sadilek, hereafter called the “defendant,” in the district court for Saline county. A trial was had of the issues joined by the pleadings, resulting in a verdict for the defendant, in accordance with the peremptory direction of the court. A motion for a new trial having been overruled, and judgment entered upon the verdict so rendered, the cause has been removed into this court for review, upon allegations of error by the plaintiff company.

Among the facts established by the pleadings and proofs, and as to which there is no dispute, are the following, viz.: On the 15th day of June, 1891, a county warrant was in due form issued to the plaintiff for $330, being the amount of a claim previously allowed and payable out of the road fund of Saline county. On the 10th day of August, 1891, the plaintiff company, whose place of business was in the city of Aurora and state of Illinois, addressed to John N. Van Duyn, county clerk of said county, the following communication: “John N. Van Duyn, County Clerk, Wilber, Neb.--Dear Sir: Our Mr. Arnett informed us some time ago that your county had allowed our claim for $330. * * * If the warrant has been issued, we hereby authorize you to receipt for warrant. If there is money on hand to pay the warrant, kindly send us draft for the amt. If not prepared to pay, please have warrant presented and registered, so that it will be paid in its turn. We inclose bill herewith. Yours, truly, Western Wheeled Scraper Co.” On August 12, 1891, said warrant was by Mr. Van Duyn, as agent for the plaintiff company, presented for payment to the defendant, as county treasurer, and indorsed, “Not paid for want of funds”; and afterwards, on the same day, the defendant, as county treasurer, drew his check to the order of plaintiff for the sum of $330, upon the Bank of Western, situated at the village of Western, in said county, and in which he, as such county treasurer, had ample funds. Mr. Van Duyn, to whom said check was delivered, on the day of its date, forwarded the same to the plaintiff, who received it, through the mail at Aurora, on the 14th day of August. On the succeeding day, to wit, August 15th, the check in question was by the plaintiff deposited in the Second National Bank of Aurora, by which it was, on the same day, forwarded for collection and return to the Bank of Western. Said check was on the 17th day of August received by the Bank of Western, and has not been paid, although said bank continued open for the transaction of business until August 19th, on which day it was closed by order of the State Banking Board, and is now insolvent. The village of Western is situated about 20 miles distant from Wilber, the defendant's home,...