53 Neb. 61 | Neb. | 1897
The plaintiff, Higgins, was a customer and depositor of the Capita] National Bank of Lincoln, and on the morning of January 19, 1893, dreAV a bill.of exchange on George Burke & Frazier, of South Omaha, for $2,000, to the order of the bank, and tendered it to the teller, saying that he had checks outstanding Avhich would overdraw his account and that he desired credit for the draft. The teller referred him to the president of the'
The case was presented upon the principal theory that the draft had been entrusted to the Lincoln bank merely
The petition, however, contained averments of the bank’s insolvency and of its president’s knowledge thereof, and that the draft had been procured through the president’s fraudulent concealment of the bank’s condition, and relief was asked also on that ground. Appellant urges that the latter theory is inconsistent with that already discussed, and that the plaintiff cannot be heard to urge it in connection therewith. We do not think that the two theories are inconsistent. One may, with perfect consistency, say, “You obtained my property as bailee for a special purpose, and you shall not claim it for your own,” and at the same time say, “You obtained possession of my property by fraud, and whether it was by bailment or sale I wish to rescind the contract and recover the property.” The bill in the case of St. Louis & S. F. R. Co. v. Johnston, 133 U. S. 566, was framed in a very similar manner. The circuit court held that the two theories were inconsistent (27 Fed. Rep. 243), but the supreme court of the United States reversed the decree of the circuit court and granted relief on both grounds, holding that the pleading was regular.
The South Omaha bank was a regular correspondent of the Lincoln bank and did not remit collections made for it in specie or as distinct remittances. It credited the Lincoln bank with funds as they were collected, and transferred balances on orders of the Lincoln bank in round sums as they accrued and the Lincoln bank demanded. When the draft was received by the South Omaha bank the account of the Lincoln bank seems to have been overdrawn, as appears from a memorandum on the letter acknowledging the draft. On the morning of January 21, there was to the credit of the Lincoln bank $1,025.05. The $2,000 draft was paid that day and passed to its further credit, and there was an additional credit of $1,751.04, making a total credit of $4,776.09. The Lincoln bank that .day drew $3,000, leaving a balance in favor of the Lincoln bank at the time of the failure, of $1,776.09. This was certainly evidence tending, at least, to show that there had been a commingling of the proceeds of the draft with the funds of the Lincoln bank, by using such proceeds at least in part for the payment of drafts of that bank. This would seem to follow from the rules laid down in a somewhat similar case by the supreme court of the United States. (Com
Finally it is contended that the district court erred in allowing interest under the circumstances. In the absence of statute this contention would have much force, but the point has heretofore been determined adversely to the defendant upon a construction of our statute. (Compiled Statutes, ch. 44, sec. 4; Capital Nat. Bank v. Coldwater Nat. Bank, 49 Neb. 786.)
Affirmed.