249 P.2d 540 | Colo. | 1952
delivered the opinion of the court.
The First National Bank in Loveland, hereinafter called the bank, suing Carroll as maker of certain prom
The counterclaim consists of an allegation that on or about January 27, 1949, plaintiff received and credited defendant’s account with the sum of $12,956.09 which two days later was wrongfully withdrawn from defendant’s account by plaintiff; that it is this sum that should have been set off in figuring the amount due the bank by Carroll.
Carroll for his fourth defense pleaded in more detail that on January 19, 1949, defendant for the first time ascertained that a check, executed by him to the S. Adams Packing Company in the sum of $12,956.09, bore an altered endorsement and that defendant had received no credit on his account with that company for the amount of the check; that on January 22, 1949, Carroll presented the check for reimbursement to the bank, and that in turn the bank demanded reimbursement from the Central Bank and Trust Company, of Denver, a prior endorser, which on January 25, 1949, drew its cashier’s check, payable to the Loveland bank, for $12,956.09 which was received by the bank and credited to Carroll’s account on January 27. Carroll further asserted negligence by the bank in honoring this check bearing an alternate endorsement.
January 27, 1949, Carroll was notified by the president of the bank that the sum of $12,956.09 had been received from the Central Bank and Trust Company to be applied to his account, but advised Carroll not to come in until the following day as he desired to take care of this matter personally. On the following day Carroll visited the bank and demanded payment of the sum in question, but the bank failed and refused to let defendant withdraw that sum or any part of it. There then
The bank then filed a third party complaint against the Central Bank and Trust Company of Denver for the amount of the counterclaim. The latter filed a third party complaint against Joe E. Hoffman for a like sum. In its answer to the counterclaim of Carroll, the bank admitted that in the latter part of January 1949 Carroll presented to it the above described cancelled check, payable to the S. Adams Packing Company; that Carroll at the time claimed that George W. Green, doing business as the S. Adams Packing Company, neither endorsed the same nor received its proceeds, and requested the bank to obtain a reimbursement from the Central Bank and Trust Company, in Denver, a prior endorser. It admits that on January 25, 1949, Central. Bank and
The bank further answered that the Central Bank and Trust Company did, on January 25, issue its cashier’s check in the amount of $12,956.09 in reimbursement of defendant’s check to the S. Adams Packing Company; that it was received by the Loveland bank January 27, and after endorsement by the bank was thereupon deposited to the credit of defendant’s account with plaintiff bank on the usual terms with its depositors, to-wit: that it was received for collection or credit at the depositor’s risk and should the check be dishonored the same would be charged back to depositor’s account. The bank promptly sent the cashier’s check through the usual course for collection in Denver, and upon presentation on January 28 the Central Bank and Trust Company dishonored and refused to pay it.
Carroll was immediately notified of this dishonor and refusal by the trust company, and the bank withdrew the credit of the amount of the trust company’s cashier’s check to Carroll’s account, charging the amount back against his account together with protest fees and expenses. It was further alleged that the Central Bank and Trust Company has at all times refused to honor and pay the cashier’s check.
The bank further answered Carroll’s counterclaim by averring that it was served with summons January 27 in a case in the district court of the City and County of Denver, No. A-62717, in which Joe Hoffman was plaintiff and George W. Green, doing business as S. Adams Packing Company, Central Bank and Trust Company of Denver, First National Bank in Loveland, and Halley Carroll were defendants; that on the same day it was served with a temporary restraining order in that case restraining it from transmitting or paying in any form to Carroll the sum of $12,956.09 until the further order of the court; that a similar temporary restraining order was served upon the Central Bank and Trust Company
It is further alleged, therefore, that the matters and things in issue between the bank and Carroll have been determined by a court of competent jurisdiction, and that such things at issue are res judicata and that the counterclaim should be dismissed.
The bank further alleged laches on the part of Carroll, in that at no time from May 3, 1948, when Carroll issued his check to the S. Adams Packing Company, did Carroll complain or indicate to the bank that it had improperly charged the check against his account, and that the check was charged against his account on the 4th day of May, 1948; that in spite of that fact more than eight months elapsed before the bank was notified of any claim that the check was improperly charged to Carroll’s account.
In a fifth defense to Carroll’s counterclaim, the bank alleged any injury or damages which Carroll sustained were the result of his own negligence; and for a sixth defense alleged that Carroll was guilty of contributory
It is alleged that the bank was negligent in honoring an altered instrument. An exhibit attached to the pleading shows that the check was made payable to the order of the S. Adams Packing Company. Its reverse side shows various rubber stamp endorsements, the first bearing the following legend:
“xxxxxxxxxxxxxx Denver, Colo.; or order S. Adams Packing Co. xxxxxxxxxxxxxx”
The next rubber stamp endorsement reads as follows:
“Pay Central Bank & Trust Co. Denver, Colo.; or order Joe E. Hoffman For deposit.”
It is apparent that the words on both the top and bottom lines of the S. Adams Packing Company rubber stamp have been inked out. This could have been done for the purpose of changing the character of the endorsement from a restrictive to a general one. An example of a typical restrictive endorsement is the Joe E. Hoffman endorsement.
Although charging in his pleading that the bank received cash from the Central Bank and Trust Company and that it was cash that he should have been allowed to withdraw immediately, Carroll in his brief does not contend that the bank received aught than the Central Bank and Trust Company’s cashier’s check. Thus his brief argues, “Plaintiff Bank was or should have been well aware of the fact that until the injunction proceedings were actually instituted and service made, that the cashier’s check received from the Central Bank and Trust Company was the same as cash, and owed a duty to Defendant not to affirmatively prevent Defendant’s withdrawing same.”
That quotation also discloses a main argument by Carroll, i.e., that the bank violated its duty to supply plaintiff with a full and fair disclosure of all facts and circumstances known to it. Had the bank disclosed to Carroll that it had been informed of the pending injunction suit and of the dishonor of the cashier’s check, it might well have withheld immediate credit of the proceeds. In fact, with the knowledge of pending court action, it could well have laid itself open to the charge of questionable practice, if not contempt of court, if it had connived with Carroll so that the latter could have drawn out of the bank immediately, on January 27, 1949, the proceeds of the cashier’s check of the Central Bank and Trust Company. It is on this point Carroll claims to have been damaged.
By the terms of the deposit agreement between the bank and its depositors, duly set forth in the pleadings,
We are of the opinion that the trial court was correct in granting summary judgment. There appears to be no genuine issue of facts in the case, and the resolution of the issues of law are proper.
The judgment is accordingly affirmed.
Mr. Justice Moore does not participate.