138 P. 465 | Or. | 1914
delivered the opinion of the court.
Asserting that defendant overdrew his account on deposit to the amount of $394.63, plaintiff brings this action to recover judgment for a corresponding sum with interest. On September 27, 1911, defendant deposited with plaintiff for collection a check drawn by one H. O. Dempster on the Imperial Bank of Canada, Vancouver, B. C., payable to cash for $585, upon the following conditions thereon indorsed: “In receiving checks, drafts or other paper on deposit payable elsewhere than in Portland this bank assumes no liability for the failure of any of its direct or indirect collecting agents whether the collecting agent be the person or concern on which the check for collection is drawn or not, and shall only be held liable when proceeds in actual funds or solvent credits shall have come into its possession. Under these provisions items previously credited may be charged back to the depositor’s account. In making this deposit the depositor hereby assents to the foregoing conditions.” Concurrently, defendant deposited $144.35 which, together with the check, was credited to the account of defendant. On the same day Dempster notified the Imperial Bank of Canada not to pay the check, employing the following words:
*230 “I find it imperative for me to ask you to cancel check to cash indorsed by Charles King, for which value has not been received to the extent of $585, and on which I am making other arrangements with Mr. King. This check is to be deposited at the City of Portland, and herewith I will assume all responsibility of the same, or any actions, etc.
Upon the deposit of the check, plaintiff immediately forwarded the check to the Northern Crown Bank, its correspondent at Vancouver, B. C., which institution, upon receipt of the check and in the forenoon of September 30, 1911, presented it to the Imperial Bank of Canada for payment. At the time the check was presented, the latter bank by the proper officer certified and returned the check to the Northern Crown Bank, and charged the account to the drawer, forgetting that payment had been stopped. The Northern Crown Bank, upon receipt of the certified check, charged the account to the Imperial Bank and remitted to plaintiff out of its own funds the amount of the check. In the evening of September 30, 1911, the Imperial Bank of Canada discovered the error it had committed in overlooking the stop order and certifying the check, and immediately notified the Northern Crown Bank of the true situation; the notice being received, however, after remittance had been made to' plaintiff. Thereupon the Northern Crown Bank telegraphed plaintiff the following message:
“Item $585, in your list Sept. 27, unpaid and remitted for by us today in error by our New York Draft 1 No. 13931. Shall we protest, wire prompt. The Northern Crown Bank.”
This intelligence was received by plaintiff on October 1,1911. On the day of the receipt of this information, plaintiff exhibited to defendant the contents of the telegram; whereupon defendant left for Vancouver, B. C., from which point on October 4th defendant telegraphed plaintiff in substance that, if it would return
“A. It was on Wednesday, the 4th, as I remember it.
“Q. Of October?
“A. Yes, sir.
“Q. What did you say in your telegram?
“A. As near as I can remember, to the effect that, if he [the cashier of the bank] would return the check to me, I would make collection.
“Q. Did he return the check?
“A. He returned the check.
“Q. Did you attempt to collect it?
“A. I attempted to make the collection and discovered it had been certified in error. The information was imparted to me; he informed me he had consulted ' a lawyer.
“Q. Who was that — Dempster?
“A. Yes, sir.
“Q. Did he say he found it had been certified in error ?
“A. Oh, now, he didn’t tell me anything about it. I got the check and saw it myself.”
As a matter of law, we think it is clear that the plaintiff did not come into possession of the proceeds of the check as contemplated by the contract, as it only received the draft which was not convertible into actual funds for the reason payment thereof had been stopped prior to its receipt by plaintiff. In the agreement defining the relation of the parties, no liability attached to plaintiff until the proceeds in actual funds should come into its possession. Proceeds in actual funds mean the real funds inuring from a collection of the
Under the state of the record, and especially in view of the written contract had between plaintiff and defendant with respect to the collection of the check in
Reversed and Judgment Rendered.