51 Cal. 64 | Cal. | 1875
The defendant and one Barton kept each a general deposit account with the plaintiff, a banking corporation doing a general banking business; and the account of the defendant being overdrawn, he was notified by the plaintiff to make it good. While the account remained thus overdrawn the defendant, on the 22d of May, sold to Barton certain mining stocks, and on that day received from him therefor, Barton’s check on the plaintiff for seven hundred and eighty-five dollars. About two o’clock of the same day, the defendant presented the check with his pass-book to the plaintiff’s receiving teller, who took the check and entered a credit for the amount in the pass-book; but made no entry of it on the books of the bank. When the check was drawn and presented to the receiving teller, Barton’s account was overdrawn and he had no funds to his credit in the bank then, or at any time afterwards. About three o’clock of the same day, the plaintiff returned the check to the'defendant, and notified him that Barton had no funds to his credit, and the check was not good; but the defendant refused to receive the check, alleging that it had been accepted by the bank as cash, and placed to his credit as such in his pass-book. Thereupon the defendant made good his account at the bank, except as to the seven hundred and eighty-five dollars, represented by the check; and if he is entitled to be credited with that sum, the plaintiff has no cause of action. If, on the other hand, he is not entitled to the credit, his account remains overdrawn to that amount, and the plaintiff is entitled to judgment.
At the trial the plaintiff proved, subject to the defendant’s objection, that for many years there had been a usage in all the banks of San Francisco, by which, when checks were presented by a depositor to the receiving teller for deposit, lie received the checks, whether drawn on that or another bank, and entered a credit for them in the pass-book; that the bank then collected the checks, and when paid entered the proper credits to the depositor on the books of the bank; but if a check drawn on another bank was not paid
When checks on another bank are deposited with the receiving teller, and a credit for them entered in the passbook, it is not contended that they are received as cash, or otherwise than for collection. If not paid on due presentation they may be returned, and the credit in the pass-book canceled. But it is insisted that a different rule obtains in respect to checks drawn on the same bank; and the argument is that the officers of the bank must be presumed to know, and are chargeable with notice of the fact, whether the drawer has funds to his credit when the check is offered for deposit; that, if in fact he has no funds to his credit, and the receiving teller nevertheless receives the check and enters a credit for it in the passbook, the bank must be held to have adopted the check, and to have received it as cash, assuming the risk of its being made good and of the solvency of the drawer. The argument assumes that the mere fact of the receipt of the check by the receiving teller, and the entry of it in the pass-book, of itself implies an agreement by the bank to accept it as cash, and is to be deemed in law as equivalent to the payment of the check. The proof shows that nothing more was done in this case. The check was handed by the defendant’s clerk to the receiving teller, together with the pass-book, without any remark, so far as is shown by the evidence, and the teller made the entry in the pass-book and handed it back. If anything more occurred, tne evidence fails to disclose it. Does this transaction of itself import an agreement by the bank to accept the check as cash? Is it in law equivalent to a payment of the check? There can be no doubt that if the bank, through its teller, expressly, or by reasonable implication, from his acts and
The rule we intend to lay down is, that when a check on the same bank is presented by a depositor with his passbook to the receiving-teller, who merely receives the check and notes it in the pass-book, nothing more (being said or done, this does not of itself raise a presumption that the check was received as cash or otherwise than for collection.
But it is contended that the late case of Oddie v. The National City Bank (45 N. Y. 735), is strictly analogous to the case at bar, and should be deemed conclusive of the questions involved here. But the opinion of the court in that
In the case at bar, the court finds as a fact that the defendant presented the check for deposit as cash, and that the plaintiff “received it as such cash deposit, and entered the amount of the same to the credit of the defendant as cash in the said deposit book.” On the motion for a, new trial, one of the grounds specified and relied upon was that this finding was not justified by the evidence. It is not pretended that there was any evidence of an express agreement to the effect that the check was offered and received as a cash deposit; and the court must have reached that conclusion, as a deduction from the facts above stated. But for the reasons already given, we think the court erred in the deduction, and that the finding is not supported l>y fhe evidence.
As the judgment must be reversed for this error, we deem it unnecessary to determine whether the court erred in striking out the evidence in respect to usage.
Judgment and order reversed, and cause remanded for a new trial.
There is no dispute concerning the facts of the transaction in. which this controversy originated.
The defendant and one Barton were customers of the plaintiff, and each kept with the plaintiff a general deposit account. Under these circumstances Barton drew a check upon the plaintiff in favor of the defendant, the check running, upon its face, to one Bogart, at the time the bookkeeper of the defendant, and Bogart immediately indorsed the check and deposited it to the credit of the defendant with the receiving teller of the plaintiff, who thereupon made the usual entry in the pass-book of the defendant. This was about two o’clock p. M., and in about one hour thereafter the check was returned to the defendant by the plaintiff as not good. At the time of the deposit of the check the drawer had no funds in the bank, and had none there at any time afterward. No inquiries were made by Bogart at the time he deposited the check, and no special directions were given by him.
Upon these facts the court below held that the deposit of the check by Bogart was equivalent to a deposit by the defendant of that much cash to his credit, and that the plaintiff thereby assumed the payment of the check. In this I think that the court was in error. Had the check been drawn upon some other bank and deposited with the plaintiff, it is conceded that it would be taken to have been so deposited for purposes of collection merely. I think that the same interpretation must be given to the transaction, notwithstanding that the deposit of the check was made with the bank upon which it was drawn. The duties and obligations imposed upon the bank receiving the check were, under the circumstances, the same in all respects as though the check deposited had been drawn upon some other bank. I say “ under the circumstances,” for had the drawer afterwards, and before the returning of the check, been in funds at the bank, as was the fact in Oddie v. The National City Bank of New York (45 N. Y. 735), it would*73 have then become the duty of the bank to apply such funds to the payment of the deposited check, in preference to any check of Barton subsequently deposited or presented.
These views will be found well supported by the author- „ ities cited in the opinion of Mr. Justice Crockett.
I concur that the judgment be reversed and the cause-remanded for a new trial.
Mr. Justice McKinstry did not express an opinion.