65 Colo. 24 | Colo. | 1918
delivered the opinion of the court.
The plaintiff in error seeks to recover from the defendant in error bank $1,750.00, which he alleges was the amount he had on deposit in the bank, subject to check, on November 26, 1915. Trial was to the court, which found the issues in favor of the defendant bank, and gave it judgment for costs.
The record discloses, that on September 17, 1915, the plaintiff opened an account with defendant by depositing $100.00; that prior to September 29th, following, he had given checks upon this deposit in the sum of $99.30, leaving
The plaintiff testified that when he deposited the Ross checks he said: “Mr. Burger, I have some debts that are past due, can I check on this to do it?” that he, Burger,
The witness Burger denied the truth of plaintiff’s testimony pertaining to his statements to him, or any communication other than as heretofore and hereafter set forth in Burger’s testimony, or that there were any personal transactions between them or any reference to any such. He says that plaintiff’s first' note was made payable to the bank, which the plaintiff does not deny, as well as the second two (which so show). He also says that Ross was practically a stranger to him; that he opened his first account with the bank at the same time the plaintiff did, and that he was introduced to the witness by the plaintiff. Pertaining to his giving the plaintiff permission to cneck, as he did, on the strength of the Ross checks, Mr. Burger admits that at the time plaintiff deposited the Ross checks that he might have thus asked him.
The plaintiff contends that the record discloses that the
“From the evidence in this case the court is of the opinion that the plaintiff obtained the credit of twenty-five hundred dollars upon the 29th day of September, by reason of the deposit of the four thousand dollar check called the Dunham check, which was afterwards repudiated ; and when the bank discovered that the check by Dun-ham, upon which it had a right to rely, and as the court finds from the evidence did rely, was repudiated in payment by the drawer of the check, that good conscience and the law ought to protect the bank against the payment of the twenty-five hundred dollars of the fund which must result, if paid, in an absolute loss to the bank.”
There being evidence to support this finding, we are not at liberty to disturb it.
If we understand it correctly, the next contention of plaintiff is that when the bank received the Ross checks for deposit by plaintiff, and credited them to his account and charged them to Ross’ account, that because these checks were drawn upon Ross’ account at defendant bank, that it constituted a payment of them to the plaintiff by the bank, and not an extension of credit to the plaintiff; that if the Ross account proved insufficient to satisfy them, or uncertain upon account of checks deposited by him, which might be returned, that in accepting the Ross checks the credit was extended to Ross, and not to the plaintiff, and for that reason that regardless of what might thereafter happen concerning the Ross account, the bank was
Without an agreement expressed or implied or understanding directly or indirectly to the contrary, we may concede that the general rule as contended for and supported by these authorities is correct, but as said in the first of them, viz., City National Bank v. Burns, 68 Ala., at page 275, 44 Am. Rep. 138, “Contracts, agreements, transactions between parties should have operation and effect according to their intention.” And again at pag'e 276, “It is the intention of the parties which must govern.”
In Lumsdon v. Gilman et al., 81 Hun. 526, 30 N. Y. Sup. 1124, it appears that the depositor and defendant agents both knew, when the draft which was drawn on the defendant bank was offered for deposit, that the drawer was insolvent. He then had an apparent credit with the bank exceeding the amount of the draft, but afterwards an error was discovered which entirely absorbed the apparent credit. The bank’s clerk testified that he accepted the draft under an agreement with plaintiff that if there was any trouble about it, it should be charged back to plaintiff’s account. It was held proper to ascertain the intention of the parties and that a verdict for the defendant bank on that issue would not be disturbed. In Arkansas Trust & Banking Co.
“The only question in this case for the decision of the jury was whether the bank accepted the check and became liable to the payment of the amount for which it issued its deposit slip to the drawee thereof. The intention of the parties to the transaction could properly have been shown for the determination of this question.”
In Pollack v. Bank of Commerce, 168 Mo. App. 368, 151 S. W. 774, it is held that a depositor may make a valid agreement with the bank that payment shall be deferred for a reasonable time until the bank can ascertain whether or not there are sufficient funds of the drawer in its hands to pay it, and that such an agreement may be established from a custom to that effect, etc. These cases, while not exactly like the one under consideration, involve somewhat similar propositions.
The court found and there is evidence from which it can properly be inferred that the plaintiff obtained the credit of the $2,500.00 evidenced by the Ross checks to him by reason of the deposit of the $4,000.00 Dunham check by Ross. This, of course, had to be under the assumption that the Dunham check would be paid, and in case it was not that the bank necessarily had the right to recharge the Ross checks to the plaintiff the same as it would have, had the Dunham check been deposited by him. When the shortage created by the Dunham check was disclosed it immediately did so; he was advised to that effect the next morning after he had deposited the Ross checks, and was requested to make good the amount of his overdraft given on the strength of this credit. In response to this demand, he voluntarily, when in possession of all the facts, acquiesced in this arrangement and gave his note and security for the overdraft which terminated in the closing of his account. His actions at that time were in harmony with the court’s finding as is his testimony in part to the effect that Mr. Burger told him he could draw checks on the strength of his deposit of the Ross checks to pay other indebtedness, otherwise, if the checks were accepted .as that much cash
In Lovell v. Goss, 45 Colo. 304, 101 Pac. 72, 22 L. R. A. (N. S.) 1110, 132 Am. St. 184, this court quotes with approval from Manhattan Life Insurance Co. v. Wright, 126 Fed. 82, 61 C. C. A. 138:
“The practical interpretation given to their contracts by the parties to them while they are engaged in their performance, and before any controversy has arisen concerning them, is one of the best indications of their true intent, and courts that adopt and enforce such a construction are not likely to commit serious error.”
This delcaration is applicable here and is just what the trial court did. The plaintiff admits that after he was advised of both his and Ross’ shortage, occasioned by the stopping of payment on the Dunham check, and after he had talked it over with a friend, that he went back to the bank the next day and gave his note (and secured it with diamonds) to represent the amount of this shortage, which did not exist, had he the right to rely upon his deposit of the Ross checks. In such circumstances, when the testimony is considered as a whole, we cannot agree that there is no competent testimony to sustain the finding of the trial court.
The judgment is affirmed.
Affirmed.
Mr. Justice Garrigues and Mr. Justice Scott concur.