File No. 3722 | S.D. | Aug 7, 1915
This appeal, No. 3722, is taken from that part of the judgment relating to the third cause of action and from an order denying a new trial. See opinion in No. 3711, filed herewith, 36 S. D. 46, 153 N.W. 903" court="S.D." date_filed="1915-08-07" href="https://app.midpage.ai/document/virgil-state-bank-v-miller-6688892?utm_source=webapp" opinion_id="6688892">153 N. W. 903. Said cause of action was alleged in the complaint as follows:
*24 “i. That at the dates hereinafter mentioned the plaintiff was, ever since has been, and is now, a corporation organized and doing business as a banking corporation under and by virtue of the laws of the state of South Dakota.
“2. That at all times herein mentioned this plaintiff was engaged in the general banking business at Virgil, in the state of South Dakota, and as such did receive from various sources moneys and credits to he, and which were, placed' upon deposit in said bank, and thereby because subject to check by the depositors thereof.
“3. That since the 13th day of April, 1909, the defendant has been a depositor of money with this plaintiff. That such deposits have been made from time to time and kept on deposit. That during the months of September and October, 19x1, the defendant became indebted to plaintiff for money advanced by it, and paid by it upon certain checks drawn by the defendant, by one C. B. Miller, his agent duly authorized thereto-, to sundry and various persons, whereby the defendant requested the plaintiff to •pay said persons various- and large amounts.
“4. That the plaintiff accepted said checks and paid the same.
“5. That at the times of the acceptance and payment of said checks the defendant had -overdrawn his account of the moneys on deposit with plaintiff, and plaintiff was without funds of -the defendant in its hands to meet the same, so that on the 30th day of October, 1911, there was remaining so overdrawn by said defendant the sum of thirty-eight hundred and five dollars and forty-three cents ($3,805.43). That the defendant has not paid the same, -or any part thereof, although payment was demanded before the commencement of this action.
“6. That said sum of thirty-eight hundred and five dollars and forty-three cents ($3,805.43) is now due and owing from said defendant to this plaintiff, no part of which has been paid, with 7 per cent, interest thereon from the 30th day of October, 1911.”
The answer was a general denial.
Plaintiff presented its proposed findings of fact and conclusions of law, conformable to the complaint, which the court refused. The court made the following findings of fact and conclusions of law:
*25 “i. That at all times mentioned herein this plaintiff was engaged in the general banking business at Virgil, in the state of South Dakota, and as- such did receive from various sources moneys and credits to be, and which were, placed upon deposit in mid bank, and thereby became subject to check by the depositors thereof.
“2. That since the 13th day of April, 1909, the defendant has been a depositor of money with this plaintiff, that such deposits have been made from time to time and kept on deposit. That on full accounting the Court find that there is no overdraft due from defendant to plaintiff.
“Conclusions of Law.”
“1. The court finds that the .plaintiff is not entitled to- judgment against the defendant on account of the-alleged overdraft.”
One of the important questions involved in this appeal is as to the right of the plaintiff bank to allow an overdraft in the bank account of defendant by honoring checks signed by the defendant, -per -C. B. 'M-iller. It seems to be the theory of appellant that the accounting between the parties simply covered the months of September and October, 1911. On the other hand, it appears to be the theory of defendant -that this is an accounting covering the entire period of the bank account, to-wit, from April 13, 1909, to October, I9ii.‘ There were offered in evidence by the defendant many checks, aggregating a large sum, cashed prior to September, 1911, which were neither signed by the defendant personally, nor by IS. M. Miller, per C. B. Miller.
We are not able to determine from the record what the trial court has really decided. That portion of finding 2, to-wit, “That on full accounting the court find that there is no overdraft due from defendant to plaintiff,” decides- nothing definite. In fact, it is not a finding of fact, but is a conclusion of law. The parties, the attorneys, and this court are entitled to the benefit of a decision of the trial court upon facts. One of the things this court would like to know is, whether on September 2, 1911, there was an actual overdraft of $177.23, as shown- by the item- of that 'date in Exhibit 8. If there was such overdraft at that time, then, let the subsequent account be set forth in the findings, showing what checks, if any, are rejected by the court, and let the conclusions show the reasons therefor. If, on the other hand, there was no
The judgment and order appealed from are reversed, with directions to the trial court to make findings of fact herein.