Parkersburg National Bank v. Als

5 W. Va. 50 | W. Va. | 1871

Maxwell, J.

The first cause of error assigned is, the court below erred in refusing to give the instructions asked for in bill of exceptions No. 1. The objection to this instruction is that it asks the court to assume that the settlement made between the parties on the 21st day of May, 1867, was binding upon the plaintiff, whether there was any mistake in it or not, which is taking from the jury the determination of the facts in the case. The instruction was therefore properly refused. Another ground assigned as error is that it was error not to give the instructions in bill of exceptions No. 3. The instruction in this bill of exceptions was, the defendant moved the court to instruct the jury that if they believed from the evidence that the defendant, on the 30th of October, 1866, entered a credit to the plaintiff for the sum of six thousand five hundred and thirty-four dollars and thirty-eight cents, as the price of the Wild notes, and that this fact was communicated to the plaintiff on the 3d. of November, 1866, and that the plaintiff afterwards, on the 21st of May, 1867, closed his account with the defendant by note, with Newber-ger as security, with the knowledge that the said sum of six thousand five hundred and thirty-four dollars and thirty-eight cents as the price of the said notes, was deducted from his account with the defendant, that the plaintiff cannot recover in this action for the price or interest of the Wild notes, in his account filed with his declaration in this cause. This instruction under the evidence was clearly right, and should have been given to the jury. It is well settled that the execution of a note in settlement of an account is conclusive upon all the items charged in it, unless some accident or mistake be shown. There is no evidence in the record tending to show that there was any mistake as to the credit in respect to the Wild notes, and the instruction asked carefully guards against misleading the jury. Under the instruction asked, the jury was to believe from the evidence that the plaintiff executed the note, with the knowledge that he was credited with a specified amount as the proceeds of the Wild notes. It does not become necessary to decide the question made on the motion for a new trial, as the' error in refusing to give the instructions asked, will result in another trial. It may be as well to say, however, that it was right under the evidence to charge the bank with interest on the sum of one thousand one hundred dollars from the time it was placed in it, because the sum was not entered to the credit of the plaintiff to be checked against, as is the usual course of business. A bank is not chargeable with interest on sums deposited to the credit of customers to be drawn against by check, until payment of the deposit be demanded, unless upon special contract. The judgment complained of will have to be reversed, for the refusal of the court to give the instructions asked, with costs to the appellant, and the cause remanded to the court below for a new trial to be had therein.

The other judges concurred.

Judgment reversed.