52 Miss. 677 | Miss. | 1876
delivered the opinion of the court.
About the first of the year 1874 Lane sent to the Capitol State Bank, for collection, his sight draft on C. C. Gibson for $372.65, afterwards credited by order of Lane with $.200, leaving $172.65 due. The Capitol State Bank, which is located at Jackson, transmitted this draft to its correspondent at Magnolia, where Gibson lived, for collection, and $60.40. were paid! on it by Gibson, and reported to the Capitol State Bank andi remitted to Lane, and a sight draft by Gatlin & Gibson, a, mercantile firm of which Gibson was a member, for.$56.25, on one Barrett, at Jackson, favor of the cashier of Capitol State Bank, and a draft by same on same, favor of same, for $56, at; ten days’ sight, were received by the correspondent of the Capitol State Bank for the balance due on Lane’s draft on Gibson,, and Lane’s draft was surrendered to Gibson, and the two drafts of Gatlin & Gibson on Barrett were forwarded by its- correspondent to the Capitol State Bank, which collected the sight draft on Barrett and remitted proceeds to Lane, and Barrett, accepted said other draft, but failed to pay it, and the Capitol State Bank did not cause said draft to be protested for nonpayment, although payment thereof was duly demanded and not made, and was afterwards again demanded with like, result-
This case, stated without circuity is simply this, viz. : The Capitol State Bank had for collection a draft by Lane on Gibson, and received $60.40 in money, and a sight draft and a ten days’ sight draft on Barrett, in settlement of Lane’s draft on Gibson, which was delivered to Gibson on receiving these things, and the bank collected the sight draft and procured the other to be accepted by Barrett, and, upon its maturity, presented it for payment, which was refused, and the bank did not cause the draft to be protested, but afterwards made efforts to collect it, but failed ; and finally, on request, delivered it to Lane, who seeks to recover from the bank what he assumes he would have recovered, or the bank would for him, of Gatlin & Gibson, the drawers, if the bank had taken the proper steps to charge them upon the non-payment of the draft by Barrett.
It would seem that to state the case is to decide it. “As a legal proposition it is undeniably true that a bank which
We have noticed the criticism of counsel on Lane’s declaration. (2) in the justice’s court. We are disposed to look to the sub•stance, rather than the form, of the statement of his cause of action by a plaintiff before a justice of the peace, and think it is sufficient in this case, and that the right of the plaintiff, Lane, to recover against the bank for the failure to cause the '$56 draft to be protested is distinctly asserted, and that is the .gist of the action.
Our view of the case may be stated thus: The bank, by Taking the $56 draft on Barrett and surrendering Lane’s draft on Gibson, made the latter its own, and became liable to Lane for the $56. If it was agreed between the bank and ‘‘Gibson that the $56 draft should be a payment of that amount •on the draft of Lane on him only when the $56 draft should be paid, that is a matter between the bank and Gibson. Lane, by receiving from the bank the $56 draft, ratified the act of the bank in taking it as payment of the amount of it on the draft •on Gibson, but did not thereby waive his right to complain that the bank did not, as it should have done, so deal with the $56 draft as to charge the drawers, who, in the absence of any ¡showing at all, must be supposed to have been solvent. The bank is responsible to Lane, and is entitled to assert any right ¡against Gibson which it may have by virtue of any agreement with him about the $56 draft as a payment of the Lane draft -on him, or may pursue Barrett, as acceptor of the $56 draft. Bank v. Triplett et al., 1 Pet., 25; Bank v. Knox & Co., 1 Ala., 152.
Judgment affirmed.