*1 (2d) P. differ, the can reasonable men Where be question one of fact then becomes HOT v. NAT. BANK OF PANKEY FIRST law clear- is jury. determined SPRINGS. follows: Corpus Juris, ly stated No. 4124. competent Ratification. Where “As to Supreme Court of New Mexico. that reasonable is evidence adduced May 25, 1936. conclusions different men could draw Rehearing June Denied rati- or there has been a not to whether contracts, acts fication of unauthorized fact be determin- question one of proper

ed instructions jury under court, to withdraw and it is error

from the from them instruction or

the case if there not verdict. But

direction of evidence ratification or if the only one

evidence conclusion by reasonable

could therefrom drawn

men, one of law question becomes be submitted and should not

the court

the jury. within which reasonable time

“What object to acts of principal must ratified them is

agent held to have or be question

ordinarily jury.” of fact and 966. C.J. jury province deter- facts whether or not

mine ratified acts wife

husband and, upon discovery the check

cashing act, disavowing the same. The

her against appellant. On found

point the verdict. feel bound I opinion majority

I with concur appellant’s second contention

error, therefore in accord am

result. ‘Sam,

Matson. I said what I shall do. I want advice thing’. said ‘If we lose this will ruin us. What *2 you do think about me going up to hold these ‘No, cattle?’ He says: I wouldn’t do that. leave check in here for Just collection. guess I Mr. Thompson will pass money down in pay this bank to this off’ and I did so.” Whatley, Cruces, W. C. of Las and E. D.

Tittmann, Hillsboro, appellant. of for The case is reflected in the instructions jury, portion court to the of which Joseph Gill, Walter Cochrane and both are (Italics as follows: ours.) Albuquerque, appellee. for

“This is a civil plain- action which the BICKLEY, tiff seeks to defendant, recover of the Justice. First National Bank Springs, of Hot dam- appellee Pankey The sued the Na- First ages for its neglect failure and to exercise Springs tional Bank of Hot for due diligence in the matter of the collec- negligence failing check for to collect a check, tion of a certain alleged which it is $21,370, pay- presented which was deposited was by in said bank plaintiff, November, ment day on the 14th bank, a customer day The check was drawn E. L. November, 1928. is admitted that a on the defendant bank credit should be against allowed the amount purchase price day., be- or two cattle a of the check alleged and it is that the bal- presented fore it payment. was unpaid ance The defendant Appellee appellant’s sent check to denies that the deposited check except was father, Pankey, tes- Rube who for collection it, denies tified as follows: diligence failed to exercise due in the col- lection thereof. Therefore the contentions “Q. What did do with that check? parties between are narrowed down to A. I the morn- Springs taken it to Hot question the-sole of the conduct of the bank o’clock, ing of the 14th ten Mr. handling plaintiff item. The alleges Matson. day that at the close of the bank’s business “Q. Took it bank and to the deposited on which the and on Mr. happened? Matson. it to Then what there deposited divers time thereafter Well, Thomp- Mr. me Mr. Matson told deposit was on in said bank to the any money son have didn’t there. drawer of check, credit of the say any sufficient Did he didn’t have which the sir, could and should all? A. he did. Mr. collection Yes talked to been made only liable not become bank does check, by the lack pay but defendant, depositor such such amount of part diligence due on the deposit until the same is collected nor pay the or failed to collect thereof, the bank drawn bound to any part amount of said depositor alle- against said said un* plaintiff, which damage to the deposits less and until collected. First National are gations the defendant except that Springs denies Bank Hot are “You further instructed admits that on November right of one has a check who issued day was left on which such check direct, in a bank to L. Pan- Joseph for collection which re- bank on such check drawn to First National depositor key was a fuse thereof and if such directions says Springs further Bank of Hot prior pay- are there was on said date ment the bank of such it be- then Thomp- E. L. in said bank to the duty and the comes bank is bound son, with which the drawer of said respect the direction of maker of same, many the items such check and thereon deposited in theretofore been *3 payee to thereof. the having Thompson not of said to the credit duty “You are instructed that it is payment to said thereof been collected and accepted having a bank an item col- having guaranteed been and bank not diligence lection to use due in the collec- alleges that on or defendant further diligence thereof and due tion in such cas- 14th, re- prior to the November and payment es means the item of such items or ac- ceipt by funds of sufficient presentment in the order of their as soon Thompson, the maker of said count of pay as funds are available to the same and check, same, the pay the said with which to failure pay that the same in order Thompson de- directed said ordered and presentment neg- of their would constitute payment stop said fendant to ligence on the part of the bank. stop payment order check and that such countermanded, and was never thereafter “You you are that instructed if find after allegations of the defendant each of which this was received bank and plaintiff. by the are denied collection, accepted if time thereafter and during the the check time in “You are instructed that law is bank, in deposits this there sufficient funds of bank where the matter that presents for there customer credit of the maker of drawer or bank, check, deposited credit in a E. to his L.

drafts, checks, express agree- an any presented in absence of if contrary prior same will be ac- to the time ment to the this was on No- payment, cepted but for not collection you vember 1928 and this you receipt by fur- plaintiff, bank of find unless said will for the sufficient same, receipt suffi- to cover prior then ther find verdict must find, funds, you you the be for the if so amount of unless fur- cient ther stopped stop payment find maker check had that such order was thereafter thereon. countermanded and that after such countermand the bank received suffi- under further instructed that “You are cient funds to the credit of no ac- case there was the evidence pay Panlcey said check and other checks bank of ceptance the defendant * * * having priority. question same check in but that merely and the title to left for collection “You are gentlemen, instructed all times in the such check remained at this case the measure damages Pankey. plaintiff unpaid balance on admitted. check of $10,370.00 together with lawful interest at before instructed that are further “You cent, per six date, you here in favor of you can find the issues shall find that the check should have been defendant, The plaintiff paid, you if so find should have you Springs, Hot Bank National First paid, been will there be a blank left preponderance of must find from the form of verdict where this sum men- shown which are the items evidence that tioned and the date can be you.” in by filled in- L. bank statements the E. deposits to his in this case troduced Plaintiff alleged specifically that De- collected had been said cember Thompson, the drawer of de- payment of such bank or that said the Pankey specifically instructed depos- up making posits, items or the directed said bank to said check bank in to said guaranteed had been its out of a only the check amount drawer on said purpose date for the presented for but other evidence paying said check. leaving of prior to the Upon the trial of the case the re-’ collection; and even 'for said bank “We, turned following ju- verdict: deposits had been that such find do ry, find the issues for and as- pay not amount in sufficient collected $10,370.00, sess his in the sum of *4 Pankey check but other checks only the together with lawful interest from thereto, you further must prior November, day of 1928.” were collections find that verdict, Upon this court entered when date prior appellee in favor of and stopped by judgment the maker Pankey check was amount appellant for said thereof, interest as find that the verdict. Motion Thomp- directed in you find new stopped; and if that ever presented and overruled. prior check to trial was payment on said stopped son 40 N.M.—18 No Appellant mentioned. case. does not contend essentially facts

This is contrary. plain taken to exceptions were legal made objections were No pleadings. tiff’s Matson testified on December that these and court to the instructions 4, 1928, $48,657.64 when had come in for the case. therefore, law of present the Thompson’s account, the credit of of' lot thus reversal is upon for relied point The Thompson’s spread before out trial “The brief: appellant’s in stated Thompson who was asked Matson which mo- appellant’s overruling in erred court checks he paid, desired to have and that verdict, at made a directed tion Thompson gave pay directions to defer chief, upon the in case appellee’s close Pankey ment of the designated and made out had not appellee that ground paid. other checks to be negligence because case for hand, directly testified to the con check; and appellee’s handling of in the trary, stating that he told he Matson want appellant’s overruling in erred likewise Pankey paid ed gave as rea verdict, made at directed for a motion therefor, son he thought the older case, upon the evidence all close of ought to be first. previous urged in the grounds the same testified that Matson said the check was overruling erred motion; likewise not in the bank and had been returned to upon the trial a new motion appellant’s Pankey. motions urged in the grounds same escape liability, To appellant the trial.” course during the alleged did not suffi- have opinion that there is is of The writer cient funds in close of busi- support the view evidence to substantial 14, 1928, ness on November finding the warranted jury was Pankey check. defense, As a further it al- were funds there whether issue leged: “And for a answer, further the bank on November Thompson in way matter, of new this defendant alleges Pankey check should which the oút on or November plaintiff, hut paid, in favor been prior receipt by it of sufficient funds this, pass considera- to a so we alone account of said Thompson with Decem- presented on the situation tion of which to off and discharge said check day, de- On that there was ber plaintiff, of said the said Thompson order- Thompson’s check- credit of posited to the ed and directed this stop defendant to deposit, general the sum ing account as a on said check was warranted stop payment and that said order was nev- the evidence finding from er thereafter countermanded.” possession in the expression, This day prior the de- “on long to and after on that about Novem- 1928,” Thompson’s sum ber posit to last even construed liberally in *5 favor, hardly cir- appellant’s would cover There grave is a doubt whether late December occurring issue cumstances made the pleadings ever evidence, plain 1928. From the submitted the court. foregoing The alleged telephone quotation an pleader referred to the from the answer of defendant cashier, Mr. which the bank’s conversation refers to an alleged stop payment "prior to Thompson Matson, he had with claimed receipt the by it of sufficient the funds for days after November or three two account of said Thompson with -which to accepted check was the when off and discharge said check of 'said telephone alleged conver- This plaintiff,” collection. thus excluding any reference to claims sation, Matson in which circumstances amounting stop pay- to a Pankey stop payment on the ment him to occurring told receipt by the bank after by Thomp- check, positively denied of sufficient funds the account of the face check. In son, of the the drawer out of which the bank could court, ver- the the paid have of the instructions Pankey check. If such an by the belief evinces jury issue case, dict of was in the and if the instruc- Thompson. As testimony of jury tions of in the the court submitted an issue of instructions court’s we seen from whether Thompson stopped payment submitted Pankey court quoted, the heretofore check on 4th, December jury pleadings, apparently issue found such against issue payment stopped Thompson had whether substantial evidence. mayWe further ob- Novem- or about “on Pankey check serve that if such issue had been framed receipt by it prior to 1928 and ber and submitted or been considered within ac- bank) (the submitted, the issues as maker of Thompson, count of found that the circumstances involved the same.” check, which to with the conversation between Matson, cashier, bank’s the drawer issue jury found- on December after or sug- now appellant appellant. Counsel the time the was credited to time, we dis- can far as so first the- gest for Thompson’s account, respect with record, to des- situation cover ignation by Thompson Matson, testimony other than in the reflected Pankey payment, check for bank, the effect that instruc- the cashier payment tion to “defer” 1928, Thompson designated the Pankey Pankey light viewed in the most than favorable respect as related cashier, its we it,” “operated disposed aas would be defer to hold “to as a matter of payment, or a law that such order of circumstances did not amount revocation stop Thompson. to a We payment.” do stop urge the bank is bound seriously respect direc- appellant to not understand tion stop maker constituting such check and to re- these circumstances fuse payee thereon to thereof. payment. *6 But quite this is a thing different from as- fact. of really matter a “Countermand serting that a drawer upon of checks pur change of a more than It much means right funds in bank has a after such checks means, It customer. pose part on of the presented have been pay- to the bank for change of that addition, notification displace priorities ment to by created order such no There is purpose bank. to of presentment of of such checks to bank. ain countermand thing as a constructive If appellant has proposi- such a R. kind.” of this transaction commercial tion, it authority has cited no support 49. Checks C.L. § thereof, and we know of none. of a stop payment to a hank “Notice to From all of the foregoing, appears (cid:127) unqualified.” positive must be check jury’s decision of the issues in Bank, Mich. State v. American Shude favor of the by sustained sub 886, A.L.R. 519, 248 N.W. evidence, stantial judgment is in check, testi- drawer Thompson, the appears, the main correct. however, that of stop payment ever did fied jury erroneously allowed interest from contrary in- but Pankey check day the 14th of November, 1928, whereas 1928, on bank structed it should allowed interest dam on the un- really urge, as we they What it. ages found from day December, the 4th circumstances, as it, derstand 1928. Our if, decision is that within 30 on behalf witness detailed days appellee shall file with clerk by Thompson, direction to a bank, amounted of this court -a remittitur of an- amount many the drawer cent, equivalent per to 6 per annum on possession then November to Decem payment as between priority displace ber judgment shall and is be through having arisen checks, priority such hereby thereupon affirmed and the cause thereof to presentation order Otherwise, remanded. judgment will payment. for' be reversed and the cause remanded for a seen, in- properly the court heretofore trial, As new and it is so ordered. right is the of one structed check a a issued has

who SADLER, J., BRICE, C. J., concur. such bank on which to direct thereof, is drawn HUDSPETH, (dissenting). Justice are such directions may This well the bank case prior to called a sequel duty of State v. becomes N.M. then 20 P.(2d) mony criminal case 1030. The defendant in the of the cashier of the bank is as fol- plain- appeared as the star witness lows : tiff, and, showing his bank statement on “Q. According to this Exhibit B De- day $26,578.06 the 14th credit balance cember you Thompson’s credited November, resulting from the de- account bank with Thompson, plain-

posit bogus drafts recall You transaction? counsel, relying again tiff’s learned A. Yes sir. credit, for and ob- asked this false book Do know due on a where that the balance tained a verdict for come from? A.' Yes $21,370, thereon sir. and interest 14th, notwithstanding that from November “Q. Where? deposited by A. That was presented on November after the check was the McFee Company Commission for the December 4th 14th and before credit of the First National Bank of Hot thereon of least Springs to a bank in Joseph, Saint Mis- plaintiff’s fair $11,000, than share more souri. this insolvent’s assets. “Q. And the credit was made wire? say That received a telegram posi- consistent BICKLEY’S —I *7 Justice from the Joseph, bank in Saint Missouri by mem- concurred in the other tion is nat that the McFee Company Commission who, I understand majority, as bers deposited this money amount of with them court, judg- based their the decision of for the the First National Bank theory that the defendant upon ment of Hot Springs the use of E. L. out liable because bank is Thompson. represented This amount 4th, pursuant December received final shipments settlement of cattle Thompson; an admitted orders verbal the McFee Commission Com- Co., Union B. & T. Pierson v. See fact. pany. 906, 172, 749, 2 A.L.R. Ky. 205 S.W. 181 order. by banks on verbal you recall, If state what amount of your receipt checks there was bank at case turns Since time, 4th, deposit by Thompson De- received December drawn disbursement against his 4th, detailed statement account that had a more 'cember paid? justified. not been A. we received this seems When thereto relative facts all the drafts on the McFee notice wire I took checks that had drawn Company about double were in the National Bank of Hot First Commission and added them Springs of December for collection of the remittance amount they adding totaled over had been machine drafts dishonored. all money taken in These Thompson testified in,” Thompson desig- and Mr. “wired and the testi- back room 278 securities, creditor, etc., rela- pay charged a paid and to be

nated what na- tion between debtor bank and balance.” agent, principal tional bank is that of treating this facts, this state Under upon the until the creditor assents or acts hands transaction; creditor and the assent of the deposit tendered specific it was notice presumed will not be when he has no in settle Company Commission the McFee knowledge or of it.” Thompson, re ment, accepted by and, until The text-writers seem to be in accord Trustees of property. The mained their “ * * * above statement: 486; Pace, 15 Ga. College v. Howard specific purpose was made for Na v. Chattahoochee Mayer Lowenstein & person and before name it whose 325; Arnold Bank, Hill v. 51 Ga. tional stood could treat credit created 475; 45, 42 Brock Co., Ga. S.E. 116 & own, absolutely necessary Bank, 40 Washington National meyer v. accept he should it as made.” 5 Michie on McGorray 855; 744, P. v. 376, 19 Kan. 9, 86, p. Banking, Banks & c. 179. § Soc., 131 Cal. Savings & Loan Stockton Patek, 479; 166 Mich. 321, Patek v. 63 P. “Specific Deposit. money is de- —When 446, 1103; Id., 166 Mich. 443, 131 N.W. posited specified check drawn or 1101, 461 L.R.A.(N.S.) 35 131 N.W. drawn, any purpose or for other than Asbury Park note; Deal & Borough of v. entry safe-keeping, general mere or ac- 297, Bank, N.J.Eq. 118 178 Grove Ocean count, deposit, specific it is a and the title 790; (C. I. R. Co. Keyes v. Paducah & A. depositor remains until 203; Ap 86 A.L.R. (2d) F. C.A.) .person intended, 61 for whom pays it is Reicheldifer, Pa.Super. peal of promises it to him.” 1 Morse on Hodgen, 38 Ill. 52; Musick v. Dustin & Ed.) Banking (6th Banks & c. § Bank, 99 Mo. 352; National v. First Leech can receiving Nor the bank 416; v. Brown Moreland App. 74 S.W. change its character wrongfully placing 257; Quincy Na Mester v. F. (C.C.A.) 86 depositor it to the credit of gen in his 631; 645; Bank, Ill.App. tional C.J. In checking eral account. re North Mis In Department Financial Sindlinger v. Mexico, Trust souri Co. of (Mo.App.) Mo. 715; State 199 N.E. (Ind.Sup.) stitutions 412; (2d) Spicer 39 S.W. v. Round Prairie Valley Good, Atty. Gen., Platte v. ex rel. Bank, Mo.App. 121; (2d) S.W. *8 (Neb.) N. Bank of Scottsbluff State Central Coal & Coke Co. v. State Bank of W. 421. Bevier, Mo.App. (2d) S.W. Brockmeyer Washing- v.

In the case of syllabus Bank, supra, the In this last case the appears: following ton National Ellington bank “Also in savings Cantley a deliv- v. “Where (Mo.App.) follows: drafts, notes, 529, 531, money, 300 S.W. it bank ers to a national said: ‘If the facts making put put him surrounding the to it in circumstances this check in there and spe- deposit quick? to deposit Well, enough be show such there was a cial, receiving running could there to be without me anybody by wrongfully get its character down to one and if he change not to depositor had it with him I where I placing to the credit of couldn’t see it ” country checking should general account.’ chase him over the to find his $48,000.00 him because that was there and the defendant bank had evident that there was other checks sufficient to take place money Thompson’s no right to up that I that Mat- didn’t consider Mr. account, no general right and that was con- son open could that hold this check was plaintiff by ferred the unauthorized 'gone and the other checks col- there for defendant hank. In the case act of the possible lection. I don’t think it was Dickson, Kimmel v. 5 S.D. 58 N.W. him to hold it while I chased around hunt- Am.St.Rep. L.R.A. ing somebody.” dif- the court no apprehend said: that “We one of principle because ferent is involved plaintiff’s taking defendant bank in * * * parties a bank. happens be acting check for collection was without case, had, with- he, That in this consideration, other than the accommoda- Kimmel, diverted out the consent disposed tion of a customer. If had purpose, it for some and used plain- received December Abuse rights. Kimmel’s ought not affect done, tiff claims without it sho.uld party on the rights confer no of a trust can notifying consulting Thompson as privity claiming in it, abusing those or on wishes, betrayal his it would have been a with him.” To mulcted in a trust. be- betray cause did a trust is judicial the court instructions Under outrage. prove necessary for the pay the check. available I dissent. Thompson left inferred it be Lest out of the with fúnds ZINN, (dissenting). Justice 4th, which un- $48,000 received my it is clear mind disposal, To was at authorities all the der the order depositor, varied plaintiff’s I This I his checks. believe has if, the interest pardoned may be I trust clear, right clearly right to do. This the record. quote again clarity, greater right right within the Why you lesser didn’t testified: has time before actual drawer you the Pankey if Matson told Mr. Mr. go to drawee bank the check Mr. payment be- to revoke or countermand Pankey’s paid, and tell wanted *9 pay- presentation fore and demand

ment. merely given

A check is an order

principal upon R.C.L. 527. agent. always open to coun- principal agent

termand an order to its before it exactly

executed. This is what Upon

did. Pan- being informed

key pres- among check was not

ent, agent, ordered his

the other did. To checks. This the bank

permit judgment the bank is in- every

form banking in New institution accept

Mexico to collection checks for peril.

their give my cannot consent to practice.

such a rule or

I dissent. P.(2d)

ROSWELL MUNICIPAL SCHOOL DIST. I, COUNTY, NO. CHAVES et al. v. PATTON, Atty. Gen.

No. 4229. .

Supreme Court of New Mexico

June