64 Neb. 284 | Neb. | 1902
This was an action by a depositor against the Citizens’ Bank of Humphrey, Nebraska, to recover back the sum of $578.20 alleged to have been erroneously charged to plaintiff’s account by the defendant bank on the 30th day of May, 1893. The suit was not fthed until the 24th day of September, 1898. Plaintiff, however, alleged in his petition that he did not discover the mistake in the overcharge of his account until September, 1898. The defendant bank answered plaintiff’s petition with a general denial and a plea of the statute of limitations. Plaintiff replied to this answer with a general denial. There was a trial of the
The facts in this case, as shown by the bill of exceptions, are that the plaintiff in this cause of action was a farmer living near Humphrey, and was a customer of the defendant bank for about four years. It appears that in January, 1893, he was considerably indebted to the bank on notes which the bank held against him, and also on some overdrafts; that at the time he was preparing to remove to the territory of Oklahoma; and that he came into the bank and had a settlement for his notes and overdraft, and paid them by secured notes which he executed for that purpose. It also appears that plaintiff removed to Oklahoma, and that he left some notes for collection with the defendant bank, and that he also authorized the president and cashier of the defendant bank to negotiate a sale of his lands in Platte county, Nebraska. It appears that this sale was negotiated, and the proceeds of the sale were placed to his credit in the defendant bank by the cashier, and that the notes that he OAved to the bank were taken out of the proceeds of this sale. It also clearly appears that the bank charged his account with a note of $500, and interest thereon, which all amounted to $578.20, and that this charge was made on the 30th day of May, 1893, and that this was one of the notes that had been settled for by plaintiff in January, 1893,—so that the question of the mistake in the account was clearly and unmistakably proved. The bank did not introduce its books in evidence and appeared to rely solely on the statute of limitations as a defense. It seemed, by inference, to have contended that plaintiff’s account at the bank was kept by the president and cashier, E. A. Stockslager, as agent for plaintiff, and that the bank, as such, had no interest in this matter. To sustain this theory, it contends that Stockslager collected plaintiff’s money and sold his farm and made the deposit for plaintiff, and that the checks which plaintiff dmv against his account were mathed from
Some objection is made in the brief of defendant bank to the action of the trial court in excluding some correspondence offered by defendant between the plaintiff and Stockslager, but all the correspondence excluded was about matters which threw no* light on the question in controversy, and hence the action of the trial court was fully justified. Only one of the instructions given by the learned trial court is assathed in the brief of defendant bank. This was the fifteenth instruction given by the court, which told the jury, in substance, that if they found for plaintiff they should fix the amount of his recovery at $578.20, and interest at seven per cent, from the time of demand. As the evidence clearly showed that plaintiff was either entitled to that amount or nothing, we can not imagine what error is concealed in the instruction.
It is also urged that the court erred in permitting two of plaintiff’s counsel to question the same witness, over the objection of defendant. Whthe we do not commend this practice, as a rule, yet it is a matter that is purely within the discretion of the trial court.
Finding no error in the record, we recommend that the judgment of the lower court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.