Winchell v. National Bank of Commerce Trust & Sav. Ass'n, 36505

• Decision Date: 23 June 1967
• Docket Number: No. 36505,36505
• Citation: 181 Neb. 870,152 N.W.2d 2
• Parties: Kenneth WINCHELL, d/b/a Premier Mineral Upgrading Company, Appellant, v. NATIONAL BANK OF COMMERCE TRUST AND SAVINGS ASSOCIATION, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 2

152 N.W.2d 2

181 Neb. 870

Kenneth WINCHELL, d/b/a Premier Mineral Upgrading Company, Appellant, v. NATIONAL BANK OF COMMERCE TRUST AND SAVINGS ASSOCIATION, a corporation, Appellee.

No. 36505.

Supreme Court of Nebraska.

June 23, 1967.

Syllabus by the Court

1. In a jury-waived law action, the judgment of the district court on the facts has the same force as a jury verdict and will not be set aside if there is sufficient, competent evidence to support it.

2. In determining the issue of sufficiency of the evidence to support a judgment, conflicts in the evidence and reasonable inferences therefrom are resolved in favor of the party successful in the district court.

3. It is the duty of an agent of limited authority to adhere faithfully to the instructions of his principal, and if he exceeds, violates, or neglects them, and loss results to his principal as a natural and ordinary consequence he is liable therefor.

Matthews, Kelley & Cannon, Martin A. Cannon, Omaha, for appellant.

Mattson, Ricketts & Gourlay, Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

WHITE, Chief Justice.

This is a jury-waived law action, in which the district court, as the fact finder, found against the plaintiff on the issue of whether the defendant bank, in violation of its agreement and instructions, had negligently transferred bank funds to another bank without restricting the right of withdrawal in plaintiff. On appeal we affirm the judgment.

The judgment of the district court on this issue has the same force as a jury verdict and will not be set aside if there is evidence to support it. Conflicts in the evidence and reasonable inferences therefrom are resolved in favor of the defendant. Weiss v. Weiss, 179 Neb. 714, 140 N.W.2d 15.

Sometime prior to August 1, 1957, plaintiff and three promoters, Sivils, Eneff, and Thompson, entered into a written partnership agreement concerning the promotion and use of a 'uranium upgrading machine.' Plaintiff's role was to finance the enterprise. The name used was 'Premier Mineral Upgrading Company.' Thompson, Eneff, and Sivils were in Craig, Colorado, negotiating for a lease on which to use the machine. On July 31, 1957, Thompson called Winchell in Omaha and told him the right to purchase a lease would expire at midnight August 1, 1957. Winchell agreed he would send the money by telegram and a later phone call supplied the bank's name, the Moffat County State Bank in Craig, Colorado. The next day, August 1, 1957, plaintiff came to the defendant bank in Lincoln, contacted Ted Thompson, a vice president, changed the name of an account he had in the name of 'Mineral Upgrading Company' to 'Premier Mineral Upgrading Company.' Conversation followed as to transfer of funds from this account to the bank in Colorado. Ted Thompson prepared in long hand, on a pad, a telegram, later sent by code which read: 'Air mailing to you to-day Bank Draft $15,000.00 Deposit to credit of Premier Upgrading Co Notify C.A. Sivils, Cosgriff Hotel.' Ted Thompson testified he prepared the telegram with plaintiff's assistance, showed it to him, asked him whether it was as he wanted it, and the plaintiff stated it was the way he wanted it.

Ted Thompson testified that Winchell placed no restriction on the right to withdrawal; that he transferred the funds as Winchell directed; that he was directed to transfer funds to an account in the Moffat County State Bank; that he was not informed as to whether Winchell had an account in the Moffat County State Bank; that he did not know whether the account was an old or a new one; and that Winchell told him to transfer the funds exactly as the telegram indicated.

On the other hand, Winchell testified that he came to the bank to 'transfer some money of this account into a like account in a bank in Craig, Colorado'; that it was to be a new account in the name of Premier Mineral Upgrading Company; that he 'wanted the bank account set up in Craig and $15,000 put in it exactly like it was...