60 Neb. 33 | Neb. | 1900
The defendants in error, who will be hereafter referred to as the plaintiffs, brought this action to recover of the Omaha National Bank damages resulting, it is claimed, from the bank’s negligence in connection with a. certain draft sent to it for collection. The cause was tried without the aid of á jury, and resulted in a finding and judgment against the defendant for the amount claimed in the petition.
The material facts are here set out: On November 9, 1894, the plaintiffs, who were partners doing business in the city of Chicago under the firm name of Kiper & Sons, drew a sight draft on P. T. Dow, an Omaha merchant, and forwarded it to the defendant for collection. On November 12 the bank notified the plaintiffs by letter that the draft had been presented and that the drawee had requested twenty days further time in which to make payment. On November 14 the plaintiff wrote to the bank, saying: “We are agreeable to your holding-draft for Mr. Dow, and he can pay the same in twenty days from 12th inst., as per his request. Please have him accept draft for payment then, and hold the same for collection.” This letter was received by the defendant on November 15, and on the same day it again presented the draft to Dow and requested him to accept it. He refused to give an acceptance due in twenty days, but proposed to give one due in thirty days, and the proposal was agreed to by defendant. The bank retained the acceptance, but did not advise the plaintiffs of the action it had taken. On December 4 the plaintiffs wrote the defendants, making some inquiry about the draft, and in due time received a reply which, in substance, stated that it could not be found, and must have been returned to the drawer. On December 7 Dow failed in business, of which fact Kiper & Sons were not informed until December 15. On December 10 the bank, replying to a letter written by the plaintiffs on December
The first assignment of error relates to the sufficiency of the petition to support the judgment. The pleading is, perhaps, inartificially drawn, but we think it states a cause of action for negligence. It states in substance the facts-above detailed; alleges that Dow has been in
The fourth assignment of error is that the court erred in permitting Julius Kiper to testify to the contents of the letter written by plaintiffs to defendant on December 4, and the reply of the defendant thereto. There was, under the circumstances disclosed, no error in the . ruling; but, if there had been, it would not warrant a reversal of the judgment, the cause having been tried without a jury and the evidence in question not being indispensable to a recovery.
The fifth specification of error is based on the ruling of the court refusing to .exclude the following testimony of Julius Kiper: “Int. 13. What notice, if any, did the bank give you at the time that you forwarded.the draft to them the second time, with the authority that they could accept a twenty-day acceptance of the draft by F. T. Dow, of his acceptance or non-acceptance of the same? Ans. 13. They gave us no notice whatever, and in fact had they notified us that Dow would not give a twenty-day acceptance. We would have withdrawn the draft at once; and gone to Omaha and attempted to get Mr. Dow to secure our claim.” The contention of counsel is that the answer is not responsive to the question, that
It is finally contended that the evidemce does not support the judgment. We think otherwise. The bank undertook to act as the agent of the plaintiffs in collecting their claim against Dow. It was bound to keep within the authority conferred upon it, and exercise-proper diligence to obtain payment. 1 Am. & Eng. Ency. Law [2d ed.], 1066. If the debt was lost through its fault, it is liable. Buell v. Chapin, 99 Mass., 594. The measure of damages in such case is the actual loss resulting from the agent’s omission of duty. If there is reasonable probability that the entire debt would have been collected but for the agent’s negligence, the amount of the claim is the measure of recovery. First Nat. Bank v. Fourth Nat. Bank, 77 N. Y., 328. In the recent case of Dern v. Kellogg, 54 Nebr.,560, 565,it is said: “It is claimed that there was no proof of damages; that is, that it was not shown that had the bank been diligent the drafts could have been collected. In such cases it is usually impossible to show with certainty that if due care had been observed the collection would have been made. The law is not so rigid in its requirements for the protection
Affirmed.