224 N.W. 913 | N.D. | 1929
This is an appeal from an order of the district court of Burleigh county overruling a demurrer to the plaintiff's complaint.
The substance of the allegations of the complaint, set out as four causes of action, may be stated as follows: W.A. McIntyre was the treasurer of Bowman county from May, 1921, to September, 1923. He was bonded by the state bonding fund in the sum of $50,000 to faithfully and impartially discharge and perform the duties imposed upon him by law as such county treasurer. During the time that McIntyre was county treasurer, the Farmers
Mechanics State Bank of Bowman was a state banking corporation doing business in Bowman county. This bank was designated as a county depositary and as such was bonded in the sum of $5,000, and McIntyre deposited funds of Bowman county therein. The Bank of North Dakota, hereinafter referred to as the defendant, was also a depositary for Bowman county. It was the custom and practice of McIntyre as treasurer of Bowman county to make deposits in the Farmers Mechanics Bank and draw checks against such deposits and forward the same to the Bank of *23
North Dakota for deposit. On April 13, 1923, the Farmers
Mechanics Bank, being insolvent and unable to pay its creditors, was closed. At the time the bank was closed McIntyre, as county treasurer, had on deposit therein a balance of over $14,000, or more than $9,000 in excess of the amount for which it was legally qualified as a depositary. To the extent of this excess the deposit was wrongful and illegal and McIntyre was accountable therefor to the county. See Bowman County v. McIntyre,
There can be no question but that on the facts as stated the defendant was negligent. This court has held, and this is the general rule in the absence of special contract, that where a bank receives a check or draft for collection it is negligence on its part to forward the same directly to the drawee bank for payment and remittance. State v. Bismarck Bank,
There remains then the question as to whether the plaintiff can recover in this action against the defendant, the Bank of North Dakota, because of its negligence with respect to the checks above described. It is to be noted that the plaintiff seeks to recover on four separate *25
causes of action, one on each of the four checks. The demurrer is general and to the whole complaint, and if any of these four causes of action is sufficient the demurrer was properly overruled. In considering the sufficiency of the allegations of the complaint we must, of course, give to the pleading the advantage of every intendment. See Northern Trust Co. v. First Nat. Bank,
With respect to the other causes of action, however, the facts are different, and further and different questions are presented. The plaintiff contends that by the payment to Bowman county of the damage suffered through McIntyre's default in making the excessive deposit, plaintiff was subrogated to any rights that McIntyre may have had as against the defendant on account of its negligence in handling the checks. Assuming the soundness of this contention it becomes necessary to determine whether by reason of the facts set forth McIntyre acquired any rights as against the defendant because of such negligence. The complaint alleges that the over-deposit in the Farmers Mechanics Bank was induced, at least to the amount of the several checks, by the failure of the defendant to present the checks for collection in a proper and timely manner; that McIntyre believed and was justified in believing that the usual course of business would be followed and that the defendant would exercise due care and diligence with respect to the matter of these collections; that accordingly he made the over-deposit. The defendant was a legal depositary of Bowman county. McIntyre had nothing to do with the matter of its *26
selection as such. McIntyre was merely the agent of the county and, as such, sent the checks in question to the defendant for collection and deposit, thus using the machinery provided by law for that purpose. See § 3326, Comp. Laws 1913. When he made the deposit McIntyre was finished with the transaction. His duty was performed. The relation between Bowman county and the Bank of North Dakota was that of principal and agent, and the defendant thereby became subject to liability for any violation of the duties born of this relationship. There was no contractual relation between McIntyre and the defendant. The deposit was not McIntyre's deposit. The defendant was not McIntyre's agent to collect the checks. It undertook to perform no duties for him. It owed him no obligation with respect to the matter. It knew nothing of McIntyre's practice respecting the county's deposit in the Bowman Bank. It could not be charged with knowledge that its negligence in collecting checks deposited in it might result in an over-deposit in the Bowman bank. It is true that McIntyre became liable to Bowman county by reason of the over-deposit in the Farmers Mechanics Bank, but we cannot see how under the circumstances that fact gave him a cause of action against the defendant. An agent is not responsible to a third person for an injury resulting from his negligence, whether it be called nonfeasance or misfeasance, in the performance of a duty owed solely to his principal by reason of his agency. National Sav. Bank v. Ward,
With respect to the fourth cause of action, that predicated upon the Ellingson check, there is even less ground for the plaintiff's contention. The duties assumed by the bank were duties to Ellingson alone. It owed no duty on account of this check either to McIntyre or Bowman county. When it failed to collect the check Ellingson was the only one who was injured, and Ellingson was the only one who had a cause of action on account of its negligence. We can conceive of no *27 theory on which it can be urged that the plaintiff succeeded to Ellingson's rights in the matter. However, since a cause of action is stated on account of the $275 check, the demurrer to the complaint was properly overruled.
The order from which the defendant appeals is therefore affirmed.
BURKE, Ch. J., and BURR, BIRDZELL, and CHRISTIANSON, JJ., concur.