92 Neb. 807 | Neb. | 1913
Lead Opinion
This is an action on a promissory note for $100, dated October 5, 1907, payable 30 days after date to the First National Bank of University Place, and signed by E. M. Wheatley. The payee is plaintiff and the maker is defendant. The answer contained an admission that defendant signed the note, a general denial, and also a cross-petition, pleading, in substance, that he contracted in writing October 5, 1907, with Mary J. Treadway to purchase her house and lot in Lincoln for $1,500, agreeing to pay tier $100 in cash and $1,400 within 30 days; that he borrowed from plaintiff the same day $100 to make the cash payment, gave the note in suit, stated the purpose for which he procured the loan, and said that, without yet having received any purchase money, he had sold his
Was the peremptory instruction erroneous? That is the question presented. The testimony of plaintiff tended to prove the facts pleaded in his petition, and he was generally corroborated by other witnesses or by documentary evidence, but that plaintiff assumed liability for any damage or loss resulting from the failure of Mrs. TreadAvay to accept the draft in payment of the balance of the purchase price of her lot was emphatically denied by officers of the bank. The folloAvicg facts are established without
Defendant insists that, when the bank refused to pay his deposits in cash, and when it issued the New York draft, it guaranteed he would not lose his cash payment of $100 by any refusal on part of Mrs. Treadway to accept its paper in payment of the purchase price of her property; that she did in fact refuse to accept anything but currency, and, by reason thereof, he was unable to complete his purchase and lost the amount already paid; that there is direct proof of all these facts; that the resulting damages pleaded in his answer were proper subjects of set-off or counterclaim in his cross-petition. His deduction is that there unis error in the peremptory instruction. The position thus taken is untenable for the following-reasons: He deposited with plaintiff checks and drafts during a panic when such paper was not being paid in currency, and, without demanding a return thereof, accepted $5 in cash after having demanded $25, and left the bank knowing that small sums only were being paid in cash. The bank never refused to return the amount of his deposit in the same medium of exchange in which it was received. After he demanded currency for his own certified check, it was torn up by an officer of the bank in his presence, without protest, and he accepted a New York draft for the same amount upon the suggestion of the
Should the jury have been permitted to find plaintiff liable to -defendant on a guaranty that he would not lose his payment of $100, if Mrs. Treadway refused to accept the draft for the balance of the purchase price? If defendant intended to hold plaintiff liable on a contract of guaranty, he should have proved that his own obligations and duties in that behalf were fully performed. If plaintiff agreed to protect defendant against a forfeiture, he should not have deprived the bank of its only means of protecting itself from the same loss, nor should he have neglected the performance of any expressed or implied duty on his part. Time was not of the essence .of his purchase. This is shown on the face of his contract and by his own testimony. He said Mrs. Treadway told him as late as November 15, 1907, ten days after the time fixed by the contract for closing the transaction, that she would wait.on him a week or ten days “to see if conditions would not loosen up,” and that if he could get the
In what has been said there is no intention to intimate that a financial panic is an excuse for nonpayment of a bank depositor’s check, or that an enforceable contract of guaranty was made, or that defendant’s plea for damages Avas a proper ¡. et-off or counterclaim. No opinion is expressed on any of those questions. They are not necessary to a decision, because there is no proof to show liability on the part of plaintiff for failure to pay defendant’s demands in currency or for breach of guaranty.
There was no error below in directing a verdict for plaintiff, and the judgment is
Affirmed,
Dissenting Opinion
dissenting.
I dissent upon the ground that, when the bank received the deposit, it was with the express understanding that it would furnish the money to pay for the house purchased by the defendant. It did not do so, and in consequence the defendant lost the $100 put up as forfeit money. That the money deposited in the bank was afterwards paid is no justification. The bank should not be excused on account of its failure to keep its contract, even if there was a financial flurry which made money scarce; and, if the depositor sustained a loss as the direct consequence of t-lie bank’s failure to furnish the money when it had agreed to do so, the loss should be made good, and a set-off against the note should be allowed. The method of this particular bank in declining to pay out more than a very small amount of the money deposited was adopted by many other banks at the time, and is not deserving of censure from a moral standpoint, because it was this method, which averted a panic that would have been very destructive, probably, of all sorts of financial and manufacturing interests, and would have swept away the savings of thousands of persons in all parts of the United States, but the method, as it affected the defendant in this case, was without legal excuse and ought not to be justified by the decision of a court.