24 S.D. 248 | S.D. | 1909
It appears from the record that on September 4) !9°5; I- H. Fanset received a check from Ue Sueur & Bradford of Minot, N. D., drawn on and payable at the Union National Bank, situated at Minot, N. D., for the sum of $500. This check I. H. Fanset indorsed in blank and handed the same, together with the passbook of M. O. Fanset, the plaintiff, to the Garden City State Bank at their banking house. The book was handed to the bank officer at the bank window, without comment, and the check was placed to the credit of M. O. Fanset in her passbook. I. H. Fanset at that time was acting as the agent of
M. O. Fanset, as plaintiff, brought this suit against the defendant, the Garden City State Bank, to recover the said amount of $500 credited in her favor in her passbook on account of the delivery of said check to the Garden City State Bank. The defendant resists such recovery, claiming that the said check was
There are but two questions before this court for consideration: (1) Was said check delivered to defendant for collection and credit only, or was the same purchased by defendant, and -that defendant became the owner thereof? (2) Was the Minot National Bank the agent of plaintiff, or was it the agent of defendant, in making said collection from the Union National Bank of Minot, and remitting the proceeds thereof?
Under the evidence and findings of the trial court, we must answer that the Garden City State Bank took the said check for collection and credit only, and not as a purchaser, and that the relationship of debtor and creditor did not exist between plaintiff and defendant by reason of such transaction. The second finding of fact made by the trial court is as follows: “On September 14, 1905, the plaintiff was, and for a long time prior thereto had been, a regular customer of and a general depositor in said bank, and there was an oral agreement or understanding between the plaintiff and defendant bank, whereby the plaintiff was to be permitted to deposit checks, such as the one hereinafter in these finding? mentioned, in defendant bank, and receive credit for the amount? thereof in his account with the bank at the time or times of such deposit or deposits, and the defendant bank was to- be per
When an agent employs other persons to assist him in transacting the affairs of his principal, the person so -employed is called
Hence we conclude that the plaintiff, Fanset, delivered the check in question to the Garden City State Bank, for collection and credit, and that plaintiff, by implication, authorized the said Garden City Bank to employ others as subagents, to make the collection and transmit the proceeds thereof back to the defendant through the ordinary arid customary course of banking business, and through ordinary banking, channels, and that, by reason of the fact of the said proceeds of said check never having been received by defendant, the relation of creditor and debtor, of the amount represented by said check, did not at any time exist between plaintiff and defendant, and that the defendant, in the absence of any showing of fraud or negligence on the part of defendant in selecting of such subagents, is not liable to plaintiff on account of the deposit of said check, but that plaintiff must look to the subagent, the National Bank of Minot, through whose failure the proceeds of the check were lost. We are aware of the fact that there is some seeming conflict of authorities in regard to generally apparent similar circumstances; but the conflict is more
The judgment of the circuit court is reversed, and a new trial granted, and the case remanded to the circuit court for further procedure in accordance herewith.