176 N.W. 646 | S.D. | 1920
-Plaintiff is a banking corporation, engaged in the banking business at Lemmon, and defendant is a banking" corporation, engaged in the banking business at Faith-, a distance of some 80 miles from Lemmon. One C. P. Halver was a depositor in the defendant bank. On or about the last day of October, 1917, one O. B. Parham, of Billings, Mont., drew a sight draft for $11,995 on the said Halver, through defendant bank. This draft reached the -defendant bank on or 'before the 2d day of November, and on the 3d day of November one Steil, cashier of defendant bank, took said draft to Lemmon, where I-Ialver then resided, for the purpose of collecting the same. Just what transpired between Stein and ITalver, relative to the draft, between the 3d and 6th days of November, is not clear, but on the evening of November 6th Steil and 'Halver and one Bennet, vice president of plaintiff’s bank, met in plaintiff’s bank, when the- matter of the payment of said draft and one or two other drafts was discussed- at some length. In regard to what took place at that time, Steil testified as follows:
“Mr. Halver went in to write out the checks for those drafts, and -lie started to write out the check for the Miles City draft, and then he says, T am going to draw this check for $11,995 on your bank,’ and I asked him if he had' sufficient funds there to take- care of this check. He said he sent down*588 $14,600 in currency by Zeman [defendant’s vice president] and a note. And Mr. Bennett says: ‘Yes; I know that Mr. Zeman had taken down $14,600.’ And I says: ‘If that is the case, aill right. That is different.’ After that Mr. Halver had made out checks and laid them- before me, and I requested Mr. Bennett if he would give me drafts for these checks, so that I could mail out the drafts to the proper parties. Mr. Bennett gave me a draft for $11,995. * * * I turned this oheck of Halveris over to Mr. Bennett. Halver made the check, and I shoved the check over to Mr. Bennett, and asked for the draft. The check was laid before me, and I shoved it over to Mr. Bennet. When Mr. Halver wrote out the checks he laid them before me, just laid them- there, and I shoved the checks over to the other side of the desk to Mr. Bennett. I requested draft, so that I could send them out to these parties, so that I could get them- there in quicker time. I told Mr. Bennett I wanted to get them there quicker. I remember of requesting the drafts. I do not recollect whether I asked Mr. Bennett to give me the draft as an accommodation. I was anxious to get the money for this Parham sight draft because it would save me two days of the draft in transport.”
Bennett took the check and issued and -delivered to Steil a draft for the full amount of the check. The check was then forwarded .‘by plaintiff, through its regular correspondents, and on the 12th of November it was presented to defendant for payment. Defendant refused payment, and gave as a reason for such refusal that there were “not sufficient funds.” Halver testified that the $14,600 that he gave to Zeman (defendant’s vice president) on November 3d was given to him for the express purpose and with the distinct understanding that it was to be used, so far as necessary, for the payment of the Parham draft. This was denied by defendant, and upon this question the trial court found:
“That the said sum of $14,600 was not given to the defendant bank by said Hialver as a deposit to the credit- of his -account in said defendant bank, nor as a specific deposit, nor as a deposit for any specific purpose, but was made as a partial payment upon his indebtedness owing to the defendant bank.”
And the court further found, relative to the payment of
Findings and conclusions were in favor of defendant generally, and from a judgment entered thereon and an order denying a new trial, plaintiff appeals.
The judgment and order appealed from are reversed.