129 Ark. 265 | Ark. | 1917
The plaintiff, First National Bank of Malvern, instituted this action before a justice of the peace of Hot Spring County against defendant, H. J. Hill, to recover the sum of $236.81, an amount alleged to have been received by defendant from plaintiff on a check drawn by defendant in the name of Gr. W. Fowler. It is claimed that defendant assumed to act for Fowler in drawing the check, but was not, in fact, clothed with any such authority, and that subsequently Fowler recovered judgment against plaintiff for the amount paid to defendant Hill on the draft. The cause was appealed to the circuit court and a trial there before a jury resulted in a judgment in favor of plaintiff.
Fowler and Hill were, or had been, partners engaged in business in Malvern and carried their partnership account with plaintiff bank. Fowler also had a personal account at the bank, but a short time before the occurrence now under consideration Fowler transferred his banking business to another bank in Malvern. Some personal feeling arose between Fowler and the officials of plaintiff bank, and the latter requested Fowler to come to the bank for the purpose of settlemgnt or adjustment of a disputed item. Fowler declined to go to the bank on account of the ill feeling between him and the officers, but sent Hill and gave him a blank check, which he had signed, with instructions to fill in the amount when the disputed item was adjusted. Hill went to the bank with the blank check, and, after the adjustment of the disputed item, filled in the amount and turned the check over to the bank. This, according to the contention of the bank officials, left a credit on Fowler’s account of the sum of $236.81, and they say that Hill drew another check for that amount and signed Fowler’s name to it, and that they cashed the check and paid over the proceeds to Hill.
The check in question was drawn on plaintiff bank and made payable to its own order, and the name of Fowler was signed to it. The testimony adduced by plaintiff tended to show that Fowler’s name was signed to the check by Hill, and that the amount named in the check was paid over to Hill. Hill denies those statements. He says that he does not remember signing the check and that he did not receive the money. The evidence shows that subsequently Fowler repudiated the transaction and brought suit against plaintiff and recovered judgment for the amount paid out on the check.
It is next contended that the court erred in refusing to permit defendant to introduce Fowler’s original pass book to show that Fowler did not have that much money to his credit at the time. That was immaterial matter for the reason that if Hill wrongfully drew the check and received the money on it, he is liable, notwithstanding the fact that the money was paid out on- an overdraft.
No objection seems to have been made by defendant to the instructions given by the court, but the record shows that defendant asked the court to instruct the jury orally that “if H. J. Hill was acting as the agent of G. "W. Fowler in dealing with the bank, and the fact of his agency was known to the bank, then Hill was not liable to the bank personally.” The instruction was properly refused, for it ignored the real issues in the case, whether or not Hill exceeded his authority and wrongfully received the money on the check. It is undisputed that the bank had knowledge of the fact that Hill was assuming to act as Fowler’s agent, but the real point is that Hill, according to the contention of the bank officials, had no authority from Fowler to act.
The cause was correctly tried below and the record is, so far as we can discover, free from prejudicial error. The judgment is, therefore, affirmed.