221 P. 53 | Okla. | 1923
Witherspoon-Stribling Commission Company was heretofore engaged in the buying and selling of livestock on commission, and carried its account with the plaintiff bank. On June 10, 1919, one of the partners of the defendant company came to Oklahoma City where he engaged the brokerage company on commission to purchase a car of stock for them. The defendant and a member of the commission company entered into negotiations with a representative of the National Live Stock Commission Company, for the purchase of *186
a car of cattle. The price was agreed on among the parties to the transaction. The defendant issued and delivered his check on the same date to Witherspoon-Stribling Commission Company for the purchase, price of the cattle, including the commission of the brokerage company. The commission company, on the same date, by its bookkeeper, deposited the check with the plaintiff bank, which credited the same to the account of the brokerage company, and without notice to the latter charged its account with an overdraft and demand note then owing by the commission company to the plaintiff bank. Witherspoon-Stribling Commission Company, not having notice of the acts of plaintiff, issued its check drawn on the plaintiff bank and delivered same to the seller of the cattle on June 10th. On presentation of the check by the vendor to the plaintiff for payment it was refused on account of "insufficient funds" to the credit of the payor. The account of the commission company would have been sufficient to pay the check except for the existence of the overdraft and demand note. The senior member of the firm was out of the city on the day of the sale of the cattle. On his return, and the following day, having ascertained the manner in which the transaction was handled and anticipating the failure of the plaintiff to honor payment of the commission company's check given for the purchase price, on account of the existing overdraft, he notified the defendant by telephone to have his bank refuse payment of the check given to his firm for payment of the stock. On June 12th, Mr. Witherspoon went to the plaintiff bank and found that payment of his check to the seller of the cattle had been refused by the plaintiff. An officer of the plaintiff bank made inquiry about the refusal of payment of the defendant's check given to the commission company for the payment of the stock. Mr. Witherspoon advised the officer that the check against which the overdraft had been charged was given to his company by the defendant to pay for the cattle, and the funds were not the property of his company, and requested the plaintiff to honor the check by his company to the seller of the stock, which the plaintiff refused to do. A representative of the vendor later called on the defendant, who then paid for the cattle. Thereafter the plaintiff commenced its action against the defendant on the check given to the brokerage company for the payment of the stock on June 10th. The plaintiff alleged that it became the owner of the check in due course of business, for value and in good faith. At the close of the trial the plaintiff demurred to the defendant's evidence, which was overruled. The plaintiff then moved for judgment in its favor and against the defendants, which was overruled by the court, and judgment rendered against the plaintiff for the costs. The plaintiff has brought error for review of the rulings. With the evidence later quoted, the facts herein stated will be sufficient to pass on the questions presented for review. The plaintiff rests its right, of recovery on the rule of law that allows a bank holding funds which are the property of a depositor placed to the account of the depositor without restrictions to apply same to the payment of any indebtedness then due and owing by the depositor to the bank. First State Bank of Ringling v. Hunt,
"Q. At the time Witherspoon-Stribling Commission Company deposited these checks, you knew the character of their business, didn't you? You knew it was a commission business, didn't you? A. Yes, sir. Q. You knew they were engaged in the business of taking orders of cattle, going into the open market and buying cattle and filling those orders from cattle they thus bought, with a margin in it, didn't you? A. Yes. Q. You knew these two checks were given to them for the purchase price of cattle which they had gone into the market and bought for someone else, didn't you? A. No, sir. Q. You knew that would be the character of their business, didn't you? A. Yes, sir. They were speculators, too, however."
There is nothing in this transaction to distinguish it from the usual and ordinary transactions previously handled through the bank about which the witness testified. The evidence was sufficient to create an issue of tact between the parties as to the probable notice to the bank of the character of fund which the commission company deposited with the plaintiff bank. If the brokerage company had indorsed the check involved herein, and delivered same to the vendor, the question would not be here. After all, under the circumstances in this case, the depositing of the defendant's check in the bank and the immediate issuing of the commission company's check to the vendor of the cattle, was in substance the indorsement and delivery of the check involved herein to the seller. The transaction was handled through the plaintiff bank for the purpose of eliminating the brokerage company's commission from the check given by the defendant. All the parties involved in the sale of the stock knew that the check included a commission to the brokerage company for the purchase of the stock. The finding in favor of the defendant charges the plaintiff with knowledge of the agency between the defendant and the commission company, and with knowledge that the commission company received the check in the capacity of agent from the defendant to pay the indebtedness of the latter.
The nature of the brokerage company's business handled through the plaintiff bank was sufficient to charge the latter with notice that the brokerage company was at all times acting as agent either for the seller or purchaser, or at least sufficient to create an issue of fact for submission to the jury. The presence of the fund in plaintiff's bank had not caused it to extend any, part of the credit to which the fund was applied or caused it to alter its position with relation to the depositor. Therefore, when the commission company made known to the plaintiff that it was handling the fund as an agent, it was the duty of the bank to apply the fund to the purpose for which the principal had placed the same in the hands of the agent. The record brings the plaintiff within the foregoing rules: Forbes v. First National Bank of Enid,
It is recommended that the judgment be in all matters affirmed.
By the Court: It is so ordered.
