141 Ky. 671 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
On October 17, 1905, N. B. Armstrong drew a check in favor of J. V. Armstrong, cashier, for one thousand .dollars, on the account of N. B. Armstrong & Son in the appellant hank, and mailed the check to him at Ravens-wood, W. Virginia, at which place he was cashier of the appellee hank. On the 17th of October 1905, N. B. Armstrong drew a check for one thousand dollars on the account of N. B. Armstrong & Son in the appellant hank, payable to J. V. Armstrong, cashier, and this check was certified on October 18th, by J. M. Weddington, cashier of the appellant' hank, and was also sent to J. V. Armstrong. This certified check was received by J. V. Armstrong on October 21st, and the uncertified check on October 19th, and both were placed to the credit of N. B. Armstrong in appellee hank. On October 27th., the uncertified check for one thousand dollars, together with
“I have been away from home this last week and in my absence two certified checks were refused — one of $1,000 by N. B. Armstrong and the other of $3,000, by E. E. McQuay. Please return these checks. I have been informed by Mr. Davidson of the Bank Josephine that these checks came through you.”
It appears from a letter of the cashier of the Louisville bank in reply to this that on November 1st, the-letter written by Weddington was received, and thereupon the Louisville bank telegraphed the bank at Baltimore from which it had received these checks, to return them, and on November 3rd. the three thousand dollar McQuay check and the one thousand dollar uncertified Armstrong check were returned to the Louisville bank and forwarded by it to the Bank Josephine for collection. The two checks thus sent were received by the Bank Josephine on November 6th., and upon presentation were paid by the appellant bank. The certified check, after being protested on October 28th., was sent hack to theEavenswood bank through the banks that had it for collection, and was received by it on November 5th. The uncertified check was never returned to the Eavenswood bank as it was paid, as before stated. Shortly after the’ one thousand dollar certified check came back protested, the Eavenswood bank demanded payment of the appellant bank, which it refused. Thereupon this suit was-
For defense, the appellant bank set up that Armstrong & Son only had on deposit sufficient funds to pay one of these thousand dollar checks on the dates that both of them were presented for payment, and on the date that the uncertified check for one thousand dollars was paid. That it paid the uncertified check under a mistaken belief that it was paying the certified check for one thousand dollars. It asked that this mistake be corrected and that the Ravenswood bank be required to appropriate the money paid' to it on the uncertified check to the payment of the certified check, or that it return to it this money so that it might satisfy the certified check.
After hearing the case the lower court rendered judgment in favor of the Ravenswood bank for the amount of the certified check with interest thereon, and it is of this judgment the appellant bank complains.
It will be observed that two mistakes were made by the appellant bank — first, in protesting the certified check, and second, in paying the uncertified check. How these mistakes happened to be made is not very satisfactorily explained. The certified check had written across the face of it in red ink the words “ Certified. October 18, 1905. J. M. Weddington, C.” And it would seem that the least sort of diligence upon the part of the officers of the appellant bank would have disclosed-that the check paid on November 6th. was not the certified cheek. So that, upon this feature of the ease, the-appellant bank does not make out a very meritorious-case of mistake upon its part. But, assuming that a mistake was made, and that it would not have paid the uncertified check except for the mistaken belief that it was the-certified check, let us now see who ought to suffer by this mistake. We may state as a general principle that where-one of two innocent persons must suffer a loss by reason of a mistake, the one whose mistake caused the loss must-bear it. (First National Bank v. Behan, 91 Ky. 560; German Security Bank v. Columbia F. & T. Co., 27 Ky. Law Rep., 581.) If, therefore, it comes to a question of loss between these two banks, the appellant bank should suffer, as the appellee bank was not guilty of either negligence or mistake. It received these checks from N. B. Armstrong in the ordinary course of business — it placed them to his credit, as it had the right to do — and then promptly forwarded them through the ordinary aind
There is another matter in the record that convinces us that the position of appellant bank is lacking in merit. It is shown by the testimony of the cashier of the Ravens-wood,bank that when he went to Prestonsburg in November to collect the certified check, he was shown the account of N. B. Armstrong & Son with the appellant fiank, and this account showed that on the 27th and 28th of October N. B. Armstrong & Son had to their credit in the bank between $2,300 and $2,400 — several hundred dollars more than enough to pay the two one thousand dollar checks that were protested on these dates. N. B. Armstrong testifies that at the time he drew these checks, Armstrong & Son had on deposit in the bank $2,400, with no outstanding checks. He exhibited the passbook of Armstrong & Son, that was balanced on October 31st, and it showed to their credit on that date $1,122.04, and this was after a one thousand dollar check given on
But, aside from this last mentioned incident, if the appellant bank has in fact lost money, its loss was occasioned by its own negligence and mistake, and it cannot save itself by putting the loss upon the Bavenswood bank. Upon this view of the case alone, the judgment of the lower court is correct, and is affirmed.