Western Wheeled Scraper Co. v. Sadilek

• Decision Date: 07 January 1897
• Docket Number: 6962
• Citation: 69 N.W. 765,50 Neb. 105
• Parties: WESTERN WHEELED SCRAPER COMPANY v. F. J. SADILEK
• Court: Nebraska Supreme Court

69 N.W. 765

50 Neb. 105

WESTERN WHEELED SCRAPER COMPANY v. F. J. SADILEK

No. 6962

Supreme Court of Nebraska

January 7, 1897

ERROR from the district court of Saline county. Tried below before HASTINGS, J. Affirmed.

AFFIRMED.

Hastings & McGintie, for plaintiff in error:

Whether there was due diligence in presenting the check for payment was a question for the jury. (Johnson v. Missouri P. R Co. 18 Neb. 690; Atchison & N. R. Co. v Bailey, 11 Neb. 332; Sioux City & P. R. Co. v Stout, 17 Wall. [U. S.], 657; Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99; Fox v. Spring Lake Iron Co. 50 N.W. [Mich.], 872; Jucker v. Chicago & N.W. R. Co. 8 N.W. [Wis.], 862; Dailey v. Linnehan, 40 N.W. [Minn.], 250; Park v. O'Brien, 23 Conn. 338; Paine v. Kohl, 14 Neb. 580.)

Plaintiff was entitled to recover the amount claimed in the petition. (Frieberg v. Cody, 20 N.W. [Mich.], 813; Nebraska Nat. Bank v. Logan, 29 Neb. 278.)

A county treasurer can only pay county obligations in cash. (Cedar County v. Jenal, 14 Neb. 254; Compiled Statutes, ch. 18, secs. 91, 92; State v. Keim, 8 Neb. 67; First Nat. Bank v. Gandy, 11 Neb. 431.)

F. I. Foss and W. R. Matson, contra:

Plaintiff was bound to present the check within a reasonable time. (Woodruff v. Plant, 41 Conn. 344; 3 Randolph, Commercial Paper, sec. 1103; Chitty, Bills, 333, 435; Smith v. Janes, 20 Wend. [N.Y.], 192; First Nat. Bank of Wymore v. Miller, 37 Neb. 500.)

The Aurora bank was responsible for the negligence of its agent, the drawee, Bank of Western. (Morse, Banks & Banking, secs. 236, 271; National Bank of Pawnee v. Sprague, 34 Neb. 318; Merchants Nat. Bank v. Goodman, 109 Pa. St. 422; Drovers' Nat. Bank v. Anglo-American Packing & Provision Co. 117 Ill. 100; Titus v. Mechanics Bank, 6 Vroom [N.J.], 588; Whitney v. Esson, 99 Mass. 308; Briggs v. Central Nat. Bank, 89 N.Y. 182; Charlotte Iron Works v. American Exchange Bank, 34 Hun [N.Y.], 26; Hyde v. First Nat. Bank, 7 Biss. [U. S.], 156; AEtna Ins. Co. v. Alton City Bank, 25 Ill. 243; Stacy v. Dane County Bank, 12 Wis. 629; Fabens v. Mercantile Bank, 23 Pick. [Mass.], 330; Strong v. King, 35 Ill. 11.)

OPINION

The opinion contains a statement of the case.

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 am't. If not prepared to pay, please have warrant presented and registered so that it will be paid in its turn. We enclose 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 afterward 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 then 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 15, 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 returned 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 19, on which day it was closed by order of the state banking board, and is now insolvent. The village of Western is situated about twenty miles distant from Wilber, the defendant's home, and about five hundred miles from the city of Aurora. It has railroad and telegraph connection with both places named, and there was at the date in question another bank thereat in good standing. In addition to the foregoing, it is shown that the time required for the transmission of letters by mail between Aurora and Western does not exceed twenty-four hours, from which the inference necessarily arises that the check forwarded by the Aurora bank on the 15th was received by the Bank of Western during business hours on the 17th.

Is the defendant in this action answerable for the loss resulting from the failure of the last named bank? We think not. There is eminent authority for the proposition that a bank which undertakes the collection of a customer's check is guilty of inexcusable negligence in sending it direct to the drawee bank instead of through the agency of a third person provided loss ensue through the failure of such drawee. (Merchants' Nat. Bank v. Goodman, 109 Pa. 422, 2 A. 687; Drovers' Nat. Bank v. Anglo-American Packing & Provision Co. 117 Ill. 100, 7 N.E. 601; Anderson v. Rodgers, 53 Kan. 542, 36 P. 1067; First Nat. Bank of Corsicana v. City Nat. Bank of Dallas, 34 S.W. 458; German Nat. Bank v. Burns, 12 Colo. 539, 21 P. 714; First Nat. Bank of Evansville v. Fourth Nat. Bank of Louisville, 6 C. C. A. 183; 1 Daniel, Negotiable Instruments, sec. 328a.) The principle recognized in the foregoing...