No. 22858 | Neb. | Jul 18, 1924
Farmers State Bank of Kramer sued to recover from Vend Aksamit and Vaclav Aksamit, Jr., $471.79 on account of a sight draft drawn against Vaclav Aksamit, Jr., for a car-load of alfalfa hay bought from Dewitt Grain Company of Lincoln and shipped to Kramer. Subsequently the action was dismissed as to Vend Aksamit and the trial proceeded against Vaclav Aksamit, Jr., as sole defendant. When the shipment arrived at Kramer, defendant delivered his check in payment of the sight draft, written on the Bank of Wilber, to the order of the Kramer bank, but, on the same day, after obtaining. possession of the sight draft and the bill of lading, he stopped payment of the check
When the evidence was submitted, the court, over defendant’s objection, sustained plaintiff’s motion for an instructed verdict in the sum of $498.47 and costs. Of this sum $50 was for an attorney fee. Judgment was thereupon rendered in that sum, and defendant, contending that the facts should have been submitted to the jury, and that the court erred in allowing plaintiff an attorney fee, has brought the record here to have it reviewed.
The sight draft was introduced in evidence by the plaintiff bank, its counsel having received it from defendant’s . counsel the day before the trial. It is indorsed: “Refused a/c wet and moldy hay.” The cashier made this explanation in respect of the indorsement. He testified that, early in the forenoon of the day in which the sight draft and bill of lading were delivered to defendant, and while defendant was in the bank, Vend Aksamit, the father of defendant, came to the bank and said that he had just come from the railroad yard and found that the car of hay was wet and moldy and advised his son not to accept it; that he, the cashier, at that time made the indorsement, which is above noted, oh the sight draft, in good faith and in the belief that defendant did not intend to accept the shipment, and that the indorsement was made solely because of what defendant and his father said to him at the time in respect of the damaged condition of the hay; that defendant and his father then left the bank together, and in about an hour defendant returned and said he would ac
True, defendant testified that, when he obtained possession of the sight draft and the bill of lading, the cashier told him to give the bill of lading to the depot agent. This was denied by the cashier. But, in view of all the facts, whether defendant was so informed by the cashier appears to be immaterial. Of course, if defendant intended to accept the shipment, he would ordinarily be required to surrender the bill of lading to the carrier’s agent. And the fact that defendant took up the bill of lading and accepted and retained possession of the sight draft, until the present case was tried, completed and made binding his obligation in the premises.
Defendant, though a young man of 28, was not a novice in business affairs of this character. The record shows that in recent years he had purchased hay which was shipped to him in car-load lots on several occasions and must therefore have known the legal effect of delivering a bill of lading to the agent of the carrier and of taking up and keeping possession of an unpaid sight draft for more than three years.
In respect of recovery in this action, the court did not erf in directing a verdict for plaintiff, except as to the allowance of an attorney fee, to which reference is hereinafter made. It is elementary that the bank’s authority was limited in the premises. It could do one of two things: Either return the sight draft and the bill of lading to the forwarding bank, on the ground that payment was refused
Much evidence was introduced in respect of the condition of the hay, and it was conclusively shown that, on arrival, it was in a badly damaged condition. But, under the facts, defendant’s redress for such damages did not lie against the bank.
As above noted, plaintiff recovered an attorney fee of $50 which was in addition to the amount recovered on the sight draft and was included in the judgment. The allowance of this fee was evidently for services in defending the suit brought against the Kramer bank by the Dewitt Grain Company. There is no warrant in law for the allowance of such fee. It follows that, from the face of the judgment, this amount must be deducted.
The judgment of the district court is affirmed, except as to the attorney fee of $50, and in respect of this sum it is directed that it be deducted from the judgment.
The judgment is
Affirmed in part and reversed in part.
Note — See Banks and Banking, 7 C. J. p. 613, sec. 274; Bills and Notes, 8 C. J. p. 320, sec. 491; Damages, 17 C. J. p. 807, sec. 133.