71 Mo. App. 451 | Mo. Ct. App. | 1897
Plaintiff and defendant are national banks, plaintiff doing business at Lincoln, Nebraska, and defendant at Kansas City, Missouri. On June 5, 1893, one M. Aach, who was doing business at Burr Oak, Kansas, for one M. Weil, drew a check in favor of Weil on the bank of Burr Oak for $700, and mailed it to Weil at Lincoln, Nebraska. At this time, and during the period covered by the controversy, Weil had more than the amount of the check to his credit with the bank of Burr Oak. Weil received the check at .Lincoln and deposited it with the plaintiff on June 7, and it was placed to Weil’s credit; and on the same day plaintiff mailed the check to defendant at Kansas City indorsed, “For collection account of American Ex. Nat’l Bank, Lincoln, Neb., S. H. Burnham, Cashier.” Defendant received the remittance on the next day, June 8, and placed the same to the plaintiff’s credit on the current account between the two banks,
There were several questions discussed in argument growing out of the main question and directly related thereto. It was said that there was but the one bank at Burr Oak and that was this defendant’s correspondent there. To this we answer that there are others than banks who may be intrusted with collections. Indeed, the plaintiff seems to have taken the trouble to prove in this case that there were others in that town engaged in the collecting business.
Again, it was said to be customary for banks to transmit collections to their correspondent even though such correspondent was the debtor. To this we answer that it is not a reasonable custom and therefore must fail of recognition by the courts. We concede it may be and perhaps is, in many instances, the most convenient mode for the bank intrusted with the collection. But if the bank adopts that mode it takes upon itself the risk of the consequences.
Again, it was said that the defendant bank could have delayed sending the check to Burr Oak without negligence until the next day after it did send it. That if it had done so there would have been the loss. But the fact is the defendant bank did not delay sending it. It sent the check with due diligence and in time to have been collected if it had been sent to someone other than the debtor. The fact that defendant might have delayed sending the check without negligence and that the loss would then have occurred can not alter the facts which defendant actually caused to transpire. In order to exonerate the defendant it should have appeared that if at the time it did send the check it had been sent to a third party the result would
The principal case relied on by defendant is that of Indig v. Nat’l Bank, 80 N. Y. 101. It is not clear what was decided by the majority of the judges taking part in that case. The court was composed of' seven judges, three of whom dissented in tofo and the fourth concurred “on question of damages,” leaving, apparently,. a minority of the court agreeing to the proposition which defendant cites in, support of his contention here. But however that is, the case is not in point. The case there was concerning a promissory note payable at the bank to which it was sent for collection. It is true, the case is reasoned by that portion of the court concurring in the opinion, much as though it involved a check on the bank. We have, however, been cited to the later case of Bank v. Bank, 128 N. Y. 26, where the force of the Indig case is much weakened by being termed a “border case” and denied application beyond the limit of the facts by which it was governed.
The judgment is affirmed.