54 Neb. 560 | Neb. | 1898
The defendants in error were partners doing business in Chicago under the name of Charles P. Kellogg & Co. The plaintiffs in error were partners doing business as bankers in Hooper, in this state, under the name of the State Bank of Hooper, and will hereafter be called the bank. H. H. Looscben was a merchant in Hooper, who
The drafts were received by the bank February 19, and were that day presented and by Looschen orally accepted, he promising to call and pay them in a few days. When the first draft matured Looschen called at the bank and asked that it be held, promising again to pay in a few days. When the second draft matured the same thing occurred. The bank held the drafts, without notifying plaintiffs, until March 5, when Looschen again called and requested the bank to write the plaintiffs asking an extension of thirty or sixty days. This was done. During this whole period Looschen was indebted to the bank about $12,000 on notes and about $3,000 on overdrafts. March 7 he conveyed all of his property to the bank in satisfaction of this debt, the bank also agreeing to pay certain other debts, not including that to plaintiffs, and amounting to about $5,500, according to a composition agreement Looschen had made with such other creditors, at the rate of 75 cents on the dollar. The same day the bank returned the drafts to plaintiffs, together with the letter with which they had been transmitted, indorsing across the letter, “Mr. Looschen has sold out his business.” After the conveyance to the bank it was impossible for the plaintiffs to collect anything. In addition to the foregoing facts it should be stated that there was evidence tending to show that in this method of handling the drafts the bank followed a custom in vogue
The court instructed the jury that the drafts being only a. means resorted to by plaintiffs to collect the debt, and there being no other parties in interest, the bank was not required to observe the demands of the law merchant with regard to presentment and notice of dishonor of commercial paper, but that it was merely a collecting-agent and bound only to reasonable diligence. So far the charge was undoubtedly correct. But the court also charged that if the bank pursued the custom prevailing at all the banks in Hooper, it was not liable, although the plaintiffs were ignorant of that custom. In other instructions the facts were rehearsed substantially as they have been stated here, and the jury was told that if the facts were so found there could be no recovery. Also the jury was charged that if it found for the plaintiffs it must find for the amount of both drafts. All these instructions were evidently disregarded by the jury. Those relating to the right to recover were palpably erroneous. A verdict rendered in plain disregard of the instructions is contrary to law, and will ordinarily be set aside, whether the instructions be good or bad. (Aultman v. Reams, 9 Neb. 487; Omaha & R. V. R. Co. v. Hall, 33 Neb. 229; Standiford v. Green, 54 Neb. 10.)
In this case, however, there should not be a reversal, because the error was in no sense prejudicial to the plaintiffs in error. The only verdict which could properly have been rendered under the evidence was one in favor of the plaintiffs below. It would be a disgrace to the law if the plaintiffs could not recover on the admitted facts of the case. Time, the holding of the drafts for a reasonable lime, at the request of the acceptor, might often not be negligent, and might even be the part of prudence.; and
The cases cited by the defendants in support of the bank's conduct are not in point, and if they were we could not regard them as precedents worthy to be followed. Courts are not organized to lend their sanction to such transactions. The bank’s conduct was not merely negligent. It was characterized by the utmost bad faith. Freeman v. Citizens Nat. Bank, 42 N. W. Rep. [Ia.] 632, was a case where drafts had been frequently drawn. It seems that some had been returned, and the drawers in
It is claimed that there was no proof of damages; that is, that it was not shown that had the bank been diligent the drafts could’ have been collected. In such cases it is usually impossible to show with certainty that if due care had been observed the collection would have been made. The law is not so rigid in its requirements for the protection of the negligent agent. It is only necessary to show a reasonable probability that with due care the col
Affirmed.