113 Kan. 352 | Kan. | 1923
The opinion of the court was delivered by
The State Bank of Pierceville sued the Gray County State Bank, of Cimarron, upon a check (and facts connected with it) for $237.50 drawn by A. L. English upon the defendant bank in favor of J. C. Kitch and by him indorsed to the plaintiff. English and Kitch were made defendants. The plaintiff recovered, and the Gray County Bank appeals.
In support of its claim that its demurrer to the evidence should have been sustained the defendant makes these contentions: (1) No competent evidence was produced tending to show that it had agreed to pay the Kitch check; (2) the only testimony having such tendency was improperly admitted; (3) the proceeds of the cattle were shown to have been paid out on other checks before the one in controversy was presented; and (4) the plaintiff is not the real party in interest.
With the exception of the item the competency of which is challenged, the plaintiff produced no direct evidence of an agreement by the defendant to pay the Kitch check or any of the others given for cattle, but relies upon inferences to be drawn from these facts testified to by the defendant’s cashier and English, who were the only persons having first-hand knowledge of the matter and whom the plaintiff regarded as unfriendly witnesses: English drew the checks without having funds on deposit to meet them. The checks or a part of them were paid by the defendant without waiting
We think there was room for a reasonable inference that there was an agreement between English and the bank that it would pay the checks drawn by him in payment of cattle to be shipped for sale. That seems a natural explanation of his conduct in giving his checks in payment without any other provision for meeting them and of the bank’s course in paying them without waiting to see if the drafts were met. The .Oklahoma supreme court has said of a similar situation:
“We think it may be reasonably inferred from the evidence that an agreement existed between Byrum and the bank, something similar to the agreement shown in the Kansas case. [Ballard, v. Bank, infra.] Byrum was engaged in buying cattle from farmers and others, immediately selling the cattle again and depositing the proceeds derived therefrom in the bank, presumedly to meet his checks. Byrum, as in this [the Ballard] case, usually sold the cattle thus purchased to Baker & Taylor, who were also cattle dealers on a larger scale, receiving their checks in payment, which he deposited with his bank as cash items. As Byrum’s checks were always paid up to the time of the transaction involved in the case at bar, it would be reasonable to infer from this course of business, covering a considerable period of time, in connection with the telephone conversation heretofore detailed, that there was an agreement between Byrum and the bank upon which this course of business was based.” (Singer v. Citizens’ Bank of Headrick, 79 Okla. 267, 269.)
If such An agreement existed the defendant’s liability to the owners of cattle to whom checks were issued in payment is established by prior decisions. (Ballard v. Bank, 91 Kan. 91, 136 Pac. 935, an
Some of the English checks paid by the defendant do not appear to have been given for cattle. The bank seems to have had some funds of English on hand when the Kitch check was presented after charging him with the difference between the amount of the draft and the actual proceeds of the cattle. Inasmuch as Kitch gave no credit to English, but accepted his check as cash, he was the real owner of the money received from the sale of his cattle except as it may have passed into the hands of an innocent holder. (Goeken v. Bank, supra.) But if an agreement existed between the defendant and English, as the jury and trial court must be deemed to have found, for the payment of the Kitch check and others given for cattle, to the extent of the face value of the draft, we think the amount of the judgment was warranted by the evidence, it not being clear that on that basis enough had. been paid out on cattle checks to prevent the payment of the Kitch check in full.
When payment of the Kitch check was refused he caused English to be arrested, under the statute making it a public offense for a person to give a check knowing that he has no funds on deposit in “or credits with” the bank to meet it. (Gen. Stat. 1915, § 3471.) English was discharged upon a preliminary examination before a justice of the peace. Kitch testified in the present action that the defendant’s cashier was the only witness for English in the criminal case, and as such said with reference to the check given to Kitch that he (the cashier) had authorized English to write checks for these cattle. The defendant urges that this testimony was not competent as an admission of the defendant because a corporation is only affected by such declarations of its officers as are made in the line of the declarant’s official duty, and that the cashier in testifying in the criminal action necessarily was acting in a purely personal capacity. The point seems to be well taken. (22 C. J. 387, 388.) As we have already held, however, this item of evidence was not necessary to the plaintiff’s case — that is, there was other evidence sufficient to support the judgment, and no error was committed in receiving it if it was admissible for any purpose. The cashier had testified, while being examined by the defendant’s attorney, that he had no special agreement with English to honor checks for cattle he might buy. What he is alleged to have said while on the stand in the criminal action was inconsistent with this and was proper by
The defendant’s proposition that the plaintiff is not the real party in interest is based on the fact that Kitch gave the plaintiff his note (which is still unpaid) for the amount of the check in controversy, upon learning of its nonpayment, and therefore he is the only person who could maintain the action. The mere giving of the note would hardly restore the title of the check to the plaintiff. It has been suggested that in such a situation the indorsee could not sue, because the action is not upon the check but upon the chain of circumstances of which it is a part. (Brannan’s Negotiable Instruments Law, 3d ed., § 189, p. 408.) It seems probable that tlm transfer of the check would operate as an equitable assignment of all the rights its payee possessed. These questions, however, need not be passed upon. Kitch was a party to the action and the defendant, being protected from any claim on his part, could suffer no substantial injury from the Pierceville bank being named as the plaintiff.
The judgment is affirmed.