*1
FIRST ASSOCIATION, Plain NATIONAL Respondent, tiff and
v. INC., LUNDAHL, Lun E. Cordell
EZRA C. Appellant. al., et Defendants dahl
No. 11359.
Supreme of Utah. Court
May Mann, Hadfield,
Walter G. Reed W. Gordon, Richard Brigham F. City, for appellant. Olson,
Chas. P. Hoggan, Olson & Allen, Logan, Don City, B. Salt Lake for respondent.
CROCKETT, Chief Justice. Security Bank plaintiff First In this suit defendants, Lundahls, contests with as-to who bears loss equipment deposited with which the Lundahls had was for This $8121.88. deposited bank. The sent check wаs in the never July but was 1966. It collection, was sent to the (1) defenses: two payment, Lundahls asserted of Canada for but failed negligently was there because dishonored. The check was *2 by the give required Logan commercial rеturned notice as to and the code, charged it back to right the back the it lost to of check to the that there was account, (2) and defendants’ defendants’ this account. At about time, however, and with an accоrd satisfaction and for im- reasons portant here, the check to it. was lost and required Lundahls were to obtain second by the dishonored check was . When check from replace Heathfield to it. charged Seсurity Bank payor.bank, First ac- against the defendants’ back the The second check was received on No- the account obtaining in count, the $893.93 IS, vember 1966, deposited and was with of creating an “overdraft” and the time at plaintiff bank to Lundahls’ account on De- in- jury answered Although a $7206.07. 5, By cember 1966. a letter dated Decem- defendants terrogatories to favorable 9, 1966, ber gave Canadian bank notice and ac- give notice failure to of the issues to Security First of insufficient funds to court, on satisfaction, trial and cord pay check, but that it would be held rendered findings,” of “further the basis payment unless otherwise instructed. $7206.07. judgment However, according jury’s finding, to the as an werе awarded Defendants $893.93 Security First did not then of Defendants their counterclaim. offset on dishonor to the defendants. appeal. duty Meanwhile, dispute, it is our nego- there is Lundahls had been Wherever tiating that evidence aсcept Corporation fact with a to as Hesston to sell on review be drawn business and inferences their had entered into a con- the reasonable 29, July pro- verdict.1 tract to do so on The supports 1966. which therefrom defendant, 1966, corporate of interest are that Decem- visions here July, In 1966, machinery in 1, deposit with of farm ber Hesston would a manufacturer escrow, equip- $187,000 in Utah, pieces plaintiff, of to be held for Logan, sold several Ltd., specified the bene- Equipment, dispositions for of certain to Heathfield ment Lundahls, including payment of fit of the Kamloops, Columbia. One British 1967, debts, 1, by January payment as of their received defendants checks 46, (1959). Inc., Mаrket, 424 Central 9 Utah Niemann v. Grand 2d P.2d “fully satisfy Lundahls oh- pay, plaintiff bank; or were to to the and on Febru- accounts, debts, wages, 20, release all ary tain charged latter that check - taxes,- outstanding account, liabilities” creating owed Lundahl the “over- pertinent to note draft” therein of them. $7206.07. Lundahls Security copy had a plainiff First questioned so, right bank’s do agent, acting since it as escrow this pivotal question is the in this case. met 1967, the Lundahls January On plaintiff’s сontention is that it plain- Hesston representatives of with had accepted the question check in as an At the transaction. complete tiff bank to agent for only, and that it took possession in were meeting, defendants upon itself no liability owner as the of the setting a letter from the check. It is true that Unifornr obligations, a total their out all direct Commercial Code presumption there ais setting out letter $75,648.73, another that a collеcting bank acts as for its as obligations contingent $2892.87. depositor. Sec. 70A-4-201(l), U.C.A.1953. letter either mention was But no However, this presupposes that the bank knew the bank check, which acts in accordance duty with its imposed accordance In had not by law; and requires presentation the total caused letters, the Lundahls *3 payor the bank in the due course of busi letters, $78,- the in amounts shown two ness, and, if the dishonored, check is notice paid to mоney, be to the escrow of 402.55 its depositor “by tc midnight its deadline and E. Cordell Lundahl Ezra C. the bank. or within longer a reasonable time” under after this that testified Lundahl the circumstances. 70A-4-212(l), Sec. U. the return of paid they asked for was C.A.1953. If there ais substantial failure in entered into been which had guaranty, perform of the duty, bank to this it loses defendants 1964,by the May, individual right charge-back. its of 70A-4-2Í2, Sec. They accounts. corporation Lundahl the respect The U.C.A.1953. issue with to this agreed it was that parties that the testified duty was found by the the papers. with other be returned later jury’s to an answer interrogatory that: by later, a and half It was about a month find negligent We the Bank was be- 1967, the February 16, that they notify a letter dated cause failed to Lundahls Inc. law, Royal prescribed Bank returned the of Canada in the time a rea- “ ‘Midnight taking 2. deadline’ notiee or from which the time midnight run, on its next bank- a bank is action whichever commences to ing day following banking day (h), 70A-4-104(l) on later.” See. U.C.A. relevant item or which it receives time, paid discussed, to the particu- the second check bank were about
sonable larly that a of reference was made being by the honored to the obligation, that aas result of their $8121.88 Canada. it, discussion of the interest on that item to dis- failure of This waived, was that the amounts referred prescribed by the statutes duty charge its above, $78,402.55, totaling were to dis- responsible makes above discussed liabilities, of their direct all and con- presented was resulting Evidence loss. tingent, including obligation in contro- of time con- passage that with the the effect versy. though Even may evidence be changed Company the Heathfield ditions of susceptible conclusion, of a different as timely had substantially, and that if argues, sup- reasonably is also loss have been no given, there would portive the finding jury of that insolvency. to its due сompromised "all accounts were settled and parties.” accord on between the issue The resolution supports also jury and satisfaction difficulty in exists which case is plainly so defendants position that, notwithstanding findings of the misunder- hardly susceptible of it is in jury favor of defendants as set forth them: Interrogatory 4 asked No. standing. above, which the trial that he court stated complete satis- accord there Was “accepted,” "apрroved” and found “true or about parties on between faction correct,” plain- he awarded nevertheless whereby 4, all accounts January tiff credit for the amount of the check. compromised betweеn settled were done the basis of court’s This was on any if including promise, parties, finding” “further that the defendants knew find, part the bank to sur- you of Heathfield’s or should have known guaranty? up the written render and, instability addition, financial plain- kеpt they fully informed were answered: To this continuing efforts to collect the tiff bank’s part agree on the first jury, theWe check. complete question No. 4. There par- and satisfaction between accord “furthter find effect .The find January 1967. We ties finding, actually ing” to contravene was. *4 agree- in said guaranty was included plaintiff jury that the made ment. 'failed to negligent 'because “was prescribed time notice in position and Lundahls is Lundahls’ time, law, abоut second a reasonable testimony to be or that the various amounts' - HENRIOD, being- honored (dissenting). check not Justice perti- is The same observation of Canada.” I respectfully Although dissent. trial court action of nent to the facts, case up is cluttered with numerous and satisfac- respect to the issue of accord some aof confusing contradictory char- de- Notwithstanding we have what tion. acter, nonetheless a there arе aré few that above, made the trial court lineated disputed appear and which to me to be check finding” that “further $8100 quite simple decisive, harmony all in from said settle- specifically omitted “was with the trial judgment. court’s * * recognized that where It is ment jury special only a case submitted to question is in this case is whether may verdicts, make correc- court a trial about payable $8100 for to de- therein, defects tions of errors or Lundahl, obvious endorsed deposited by fendant is- findings on may and he make Lundahl, additional with a imposed condition by Lun- submitted to sues which have not been dahl that it was only, collection places jury, necessary settle the issues but are liability absolute on the bank to collect has party But demand- involved.3 when the amount from the spite maker’s bank, in by jury to have ed trial he entitled is of hell high water, failing which, the facts, is not the trial find the and it bank, an Lundahl, obvious be- findings prerogаtive court’s make incon- comes, not an agent any more, un- but an thereby sistent defeat therewith named surety without All consideration. jury’s findings. effect of the this because of a claim lack notice of dishonor under some real or ethereal code jury’s In consonance with the an provision apparently that has nothing to do interrogatories and we swers to the what “deposit with a only.” I above, part have the trial said think question that thе should be resolved judgment allowing court’s favor the trial court’s conclusion bank to the facts of this case the bank is not reversed; judgment defendants is legally liable money to contribute its own awarded defendants for $893.93 money, fоr the claimed “loss” counterclaim is n Costs to defend affirmed. all, not. at lost Lundahl still claim has a (appellants). ants maker, for it against the and if is, paid by latter, obligation whose TUCKETT, CALLISTER, obviously it unjust and EL- in an en- would result LETT, cir- JJ., if richment also concur..
3. See 53 Am.Jur. Trial § *5 thing could There was no such as an accord that Lundahl did not or cumstances respect to- be no reason satisfaction in this case with obligor should pursue the not in'question. simply collection the check The check depositee why agent a mere into obligation being agent, purpose primary held an transmute should any con- agent relationship only. (the sans Fiad suretyship check, bank) collected but had not on the аspect. sensual paid proceeds over, proceeds then although the main might noted be may well have an item includable become liability opinion attributes in a true accord satisfaction atmos- by a dishonor the check’s bank because of phere. Security’s failure and First foreign bank is thereof, conclusion —that The trial court should be affirmed. circumstances quite true under simply notified foreign case. insufficient Security therе were First check but pay the presently
funds
unless
payment
held for later
be
would
First
case
In such
otherwise advised.
unjust enrichment particu- 1, Unjust Enrichment),
tion, Sec.
larly nothing inimical in since there pro- Code with such
Commercial
tection.