147 Ky. 690 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
The answer of Sidebottom denied all the material averments of the petition.
On a trial of the case before the court, to whom the law and facts were submitted, the only witnesses introduced were F’orsee, the cashier of the appellant bank, and Sidebottom, the appellee. Forsee testified in substance that Miller, as deputy sheriff, had an account with his bank, and' that on March 4, 1911, Miller gave to bim as cashier a check for $1,495 on the Citizens Bank of New Liberty, as well as checks on other banks. That these checks were sent in due course of business to the banks
When the cheeks given by Miller to Sidebottom and placed by Sidebottom with the Farmers’ National Bank for collection, were presented to the appellant bank for payment, it does not appear that any representations were made or any questions asked. The checks were simply paid in the usual course of business, as the books of the appellant bank showed that Miller had to his credit an amount sufficient to pay the checks he had given to Sidebottom.
Sidebottom testified that some days before Miller gave him the checks before mentioned, he inquired of Forsee, cashier of the appellant bank, the condition of Miller’s account, but Forsee declined to give him any information about it, and this was the only conversation he had with Forsee in reference to the matter, until after he learned that the check given by Miller on the New Liberty bank had been returned not paid. That he had no information previous to the payment of the checks that there was any doubt about Miller’s checks being good, and there was no understanding or ágreement of any
It will be observed that there is direct conflict in the evidence of Forsee and Sidebottom as to what occurred between them in reference to the checks given by Miller to Sidebottom being good, provided the checks Miller gave the bank were paid, Forsee testifying in substance that he told Sidebottom the checks were good provided the checks Miller had put in the bank for collection were paid; while Sidebottom denies that any conversation of this kind occurred. But there is no claim on the part of Forsee that when the Miller checks were presented for payment and paid to the Farmers’ National Bank, that any conditions or qualifications were attached to the payment. Of course, if the checks given by Miller to Side-bottom were paid with the understanding or agreement on the part of Sidebottom that he would refund to the bank the amount paid if the checks Miller had placed on deposit were not paid, the appellant bank would be entitled to recover from Sidebottom the amount in controversy. But the evidence does not justify us in holding-contrary to the view of the judge of the lower court that an agreement or arrangement of this kind was made, and so we will treat the case as if the cheeks given by Miller to Sidebottom were paid in the ordinary course of business and without any agreement or understanding that the amount of them should be refunded in the event it developed that the checks given by Miller and on the faith of which his checks to Sidebottom were paid, were not paid. With this issue of fact out of the way, the simple question presented in this — can a bank that in the ordinary course of business pays a check given by its customer on his account recover the amount so paid from the person presenting the check if it subsequently develops that the customer did not when the check was paid have to his credit funds to pay it, or, if it is paid under the mistaken belief on the part of the bank that the customer had funds sufficient to pay it. This question was before us in the case of Robinson & Co. v. Bank of Pikeville, 146 Ky., 538, and it was there ruled that when a bank pays a check given by its customer, it cannot recover from the party to whom the check was paid the amount of it. The authorities supporting this principle are so fully stated in the Bank of Pikeville case that it does not seem necessary to repeat them here.
Wherefore, the judgment of the lower court dismissing the petition is affirmed.