285 F. 565 | 9th Cir. | 1923
(after stating the facts as above). The plaintiff in error argues at length that the evidence is insufficient' to sustain a verdict for any amount in favor of the defendant in error. It is not asserted that there was no evidence which, if credited by the jury, would support the verdict. No request was made in the court below that the jury be instructed to return a verdict for the plaintiff in error. It follows that this court cannot inquire into the question of the weight of the evidence. American Trading Co. v. North Alaska Salmon Co., 248 Fed. 665, 160 C. C. A. 565.
The court below instructed the jury that in receiving the deposits the bank had the right to assume that any check presented for deposit was owned by the party presenting it, provided that it was duly' indorsed without limitation of indorsement by the payee thereof, and the bank had no information which would put it upon notice to the contrary. Again the court instructed the jury that th,e deposit slip might be controlled by other evidence, and that it was not conclusive as a direction to the bank as to whom the deposit should be credited, that oral directions or other instructions might show that the deposit was intended to be in the name of some other party than that on the deposit slip. The final instruction was the following :
“If Fred Birdsall presented a clieck to the bank which was payable to Mary Neville Birdsall and duly indorsed by her, and at the same time that said check was presented for deposit a deposit slip to the effect that said money should be deposited to Mary Neville Birdsall, then the bank had no right to credit such deposit to the joint accounts of Fred Birdsall and Mary Neville Birdsall, but should have credited it solely to Mary Neville Birdsall.”
To the instruction last given exception was taken on the ground, first, that it was incorrect in matter of law: and, second, that it ivas contradictory of other instructions. We think the exception was not well taken. It was clearly correct to charge the jury as a proposition of law that if Birdsall, on presenting an indorsed check to the bank, presented with it a deposit slip to the effect that the money was deposited in the name of the payee of the check, the bank, in the absence of other circumstances to control the disposition of the fund, had no right to credit the money otherwise tha_n as directed by the deposit slip. Birdsall at no time claimed to own the checks, nor did he indorse them or make, other direction as to their deposit than that which was evidenced by the deposit slips. Bates v. First Nat. Bk. of Brockport, 89 N. Y. 286; Armstrong v. Johnson. 93 Mo. App. 492, 67 S. W. 733; Honig v. Pacific Bank, 73 Cal. 464, 15 Pac. 58; Brown v. Daugherty (C. C.) 120 Fed. 526. Nor was the instruction inconsistent with the other instructions to the jury. On the contrary, it was an instruction, as the jury must have understood, to he taken in conjunction with the other instructions, instructions in which all of the defenses of the plaintiff in error were dealt with and its rights safeguarded. While by the prior instructions the jury were told that they might find for the bank, if they believed that the checks were indorsed by the defendant in error and delivered into Birdsall’s possession, and by him presented to the bank with instructions to enter
We find no error. The j'udgment is affirmed.