55 Neb. 303 | Neb. | 1898
On April 20, 1893, the defendant in error, hereinafter styled the Moline bank, was the owner of a promissory note in the sum of $1,102.43, executed by David L. Darr, of date November 7, 1892, and due May 7, 1893, payable at Holt County Bank, O’Neill, Nebraska, and on April 20, 1893, sent it to plaintiff in error, hereinafter called
“Moline, Illinois, April 20, 1893.
“F. H: Davis, OasMer, Omaha, Nebraska — Dear Sir: Herewith find for collection and returns:
“Number. Amount.
“36811 David L. Darr, May 10.■. .fl,147.25 and Ex.
“Please acknowledge and report by number. Do not hold collections. If dishonored, return at once.
“Yours respectfully, J. S. Gilmore, OasMer.”
The Omaha bank acknowledged receipt of the note and on April 26 sent it to the Holt County Bank. The letter with which it was inclosed was in terms:
“Omaha, Nebraska, April 26,1893.
“Holt Oounty Bank of O’Neill- — -Dear Sir: I inclose for collection and credit the following items. Correspondents are not authorized to hold collections for convenience of customers. Please return promptly all unpaid paper. Do not credit' until paid. Please report by our number. Protest, unless otherwise instructed.
■ “Yours respectfully, F. H. Davis, OasMer. “355136 Darr. No. Pr. Int.$1,102.43.”
The words in the letter, “Do not credit until paid,” were in red ink. The note was indorsed as follows:
“Pay F. H. Davis, Or., or order, for account of First National Bank, Moline, Ills.
“J. S. Gilmore, OasMer, Omaha.”
“Pay G. B. Darr, cashier, or order, for collection and remittance to First National Bank, Omaha, Neb.
“F. H. Davis, OasMer.”
The Moline bank wrote several times to the Omaha bank and inquired in regard to the note and its payment, and urged its return if not paid. The Omaha bank, by letters and telegrams to the Holt County Bank, made inquiries as to what had been done with the note and requested or demanded its return if unpaid. On July
“93— 7 — 10 1102.43
92 — 11— 7 8%
8— 3 6:2 ) 88.19.44
44.087
CO ¿3
05 cq O GO rH O co
O O 05
Holt County Bank 63.01
Paid. 1102.43
Jul. 10 10 00 -
O’Neill, Neb. $1165.44 We credit.”
The Holt County Bank did not open its doors for business after July 10, and on July 12, at about 1 o’clock in the morning, passed into the hands of a bank examiner and was afterwards placed in care of a receiver. The Holt County Bank and the Omaha bank had each an account with the other, and there had been such accounts and a course, of continuous mutual business transactions between them during four or five years prior and to and inclusive of the time of the matter herein involved. The
In error proceeding to this court it is urged for the Omaha bank that when it forwarded the note to the Holt County Bank for collection it had performed all that could be exacted of it; that the bank of collection became the agent of the Moline bank, and the intermediary bank was not further liable. Had the note been transmitted to the Holt County Bank merely for collection and remittance of the amount received, then the doctrine indicated in the argument might have been successfully invoked and have been governable in the determination of the litigation, for on this subject it has' been announced by this court: “Where a bank receives for collection a note or bill payable at a distant point, with the understanding that such collection is an accommodation only, or that it shall receive no compensation therefor beyond the customary exchange, and it transmits such paper to a reputable and suitable correspondent at the place of payment, with proper instructions for the collection and remittance of the proceeds thereof, it will not be liable for the defaults of such correspondent. In such case the holder will be held” to have assented to the employment in his behalf of such agents as are usually selected by banks in the course of business in making collections through correspondents, and the correspondent so selected will,- in the absence of negligence by the immediate agents and servants of the transmitting bank, become the agent of the holder only.” (First Nat. Bank of Pawnee City v. Sprague, 34 Neb. 318.) But the Omaha bank did not allow this note to take the regular course of collections and to fall within the established rules relative to such transac
It is insisted that there was no payment of the collection to the Holt County Bank shown; that there was such an inference of fraud and unfair dealing exhibited by the evidence on the subject of the payment of the note, or collusion between the bank of collection and the payee, directed against and calculated to affect the rights of the intermediate bank as to render such asserted payment of none effect, to show it a sham and in fact no payment. Whether the defense here sought to be interposed could be made of avail under the issues presented by the pleadings Ave need not decide. Suffice it to say that the only reasonable conclusions Avhich could be drawn from the evidence were that payment of the note was made, and credit for the amount collected given the Omaha bank in accordance with its instructions.
The charge of the trial court to the jury to return a verdict for the Moline bank was warranted by the facts and the laAV applicable thereto, was proper, and the judgment must be
AFFIRMED.