Boothe v. Farmers & Traders Nat. Bank , 53 Or. 576 ( 1908 )

Mr. Justice Moore

delivered the opinion of the court.

1. The court was requested to modify one of its findings of fact so as to change t'he date February 20th to the 10th of that month, June 20th to the 30th of that month, and also to alter the year 1901 to the years 1902 and 1903, when certain deposits were made by the plaintiff, as follows: February 10, 1902, $2,000; June 30, 1902, $1,000; July 18, 1902, $2,500; June 9, 1903, $2,615.08; July 6, 1903, $76.71; and August 14, 1903, $150 — but, the motion having been denied, it is maintained that error was thereby committed. The pleadings admit that the sums of money thus stated were placed in the bank by or for the plaintiff on the several dates specified in the motion. Where there is no issue in respect to a particular fact, it is usually unnecessary for any finding to be made in relation thereto. Moody v. Richards, 29 Or. 282 (45 Pac. 777); Jennings v. Frazier, 46 Or. 470 (80 Pac. 1011).

2. The court having been requested, however, to amend its findings so as to conform to the facts admitted, a failure to comply therewith constitutes error, unless the finding as made could not have been detrimental to the party requesting the modification. Wood v. Broderson, 12 Idaho, 190 (85 Pac. 490); State v. Baird, 13 Idaho, 126 (89 Pac. 298).

■ 3. The defendant’s counsel, in order to prove that such refusal was prejudicial to his client, sets forth in his brief a copy of the account, taken from the books of the bank, indicating the money left with the defendant, by or for the plaintiff, that was subject to check, and specifies the several withdrawals therefrom. By inserting on the credit side a deposit of $2,053.33, as of July 28, 1899, as alleged in the complaint, it appears from the statement that on October 1, 1902, when the plaintiff executed to the defendant the promissory note for $2,000, he had on deposit only $669.51, thus establishing the fact, it is asserted, that a consideration existed for giving th'e larger note mentioned, and hence errors were committed in failing to allow interest thereon, and in refusing to award attorney’s fees for the collection thereof. The sum so inserted in the account consists of a certificate of deposit, which was issued by the defendant to the plaintiff November 28, 1898, for $2,000, and left with J. W. Scriber, the defendant’s cashier, who indorsed Boothe’s name on the instrument, credited thereon $53.33, as accumulated interest, and impressed on the face of the certificate the following cancellation: “Paid Jul. 28, 1899” — but did not make any memorandum of the transaction in the books of the bank whereby the plaintiff secured credit therefor. Whether or not Scriber had authority to write Boothe’s name on the back, of the instrument and surrender it to the bank is not necessary to inquire, for, the complaint having alleged that the amount thereof, to-wit, $2,053.33, was deposited July 28, 1899, to plaintiff’s credit, the action of the cashier in the respect mentioned must be treated as ratified; and, this being so, a consideration existed for the execution of the note for $2,000 at the time it was given, .since the evidence tends to show that the plaintiff then received from the bank $3,300 in cash, for which he gave the note last mentioned, and also drew a check on the bank for $1,300.

4. The plaintiff’s counsel was not obliged, in a law action, to anticipate a defense, or required to allege in the complaint that either of the notes set forth in the answer as counterclaims were given without consideration. Bliss, Code Pl. (3 ed.) § 200.

5. The answer having alleged that the plaintiff executed these negotiable instruments, the giving of which raises the disputable presumption of a sufficient consideration (Section 7.88, subd. 21, B. & C. Comp.), the averment in the reply that no consideration for either of the notes existed adequately presented the issue in relation thereto, but the finding of the court thereon is not, in our opinion, justified by the preponderance of the evidence.

6. It remains to be seen whether or not the testimony supports the court’s finding that the note for $2,000 was given to evidence the withdrawal of money from the bank for which the plaintiff had credit, as for a deposit subject to check. The consideration of this question necessitates a statement of the plaintiff’s monetary relations with the defendant and its cashier. The narration will begin with the dealings of the parties, to illustrate their mode of doing business, though a part of their account is not involved in this action. The plaintiff sold a farm, and on October 21, 1897, left with the defendant $10,350, taking a certificate of deposit therefor, which provided for the payment of interest therein p+ ■ -‘-■e of 5 per cent per annum. No compensation, however, was to be paid for the use of the money if left with the bank after the expiration of 12 months. He also deposited with the defendant on October 26, 1897, the further sum of $640, and received a like certificate therefor. He obtained from the bank at sundry times various sums of money, aggregating $1,650, for which he gave promissory notes, and, to insure the payment thereof, assigned to the bank a promissory note for $4,600, which he had received as evidence of a part of the purchase price of-the land. The collateral note, amounting to $4,902.80, was paid to the bank November 28, 1898, at .which time a settlement of the account was consummated, and the certificates of deposit were surrendered, amounting to $10,920.68 and $676.40, respectively. The plaintiff’s notes, evidencing loans which he had secured from the bank, amounting to $1,695.69, were paid off, and for the remainder of the money he received proper credit, only two items of which will be mentioned, to-wit, certificate of deposit No. 3708, for $10,625, issued to J. W. Scriber, and certificate No. 3709, for $2,000,' issued to Boothe, who left it at the bank with other papers belonging to him. The certificate for the larger sum was made payable as indicated, to enable Scriber to secure property for Boothe, who gave the cashier written authority to purchase for him 100 shares of the capital stock of the defendant, stipulating to pay therefor a price not exceeding $106.25 a share, subject to delivery January 1, 1899; the party selling to receive the dividend to be declared as of that date. The stock was obtained, but the plaintiff declined to accept it, Scriber agreed to repay the money evidenced by the certificate, and pursuant thereto he thereafter placed in the bank, subject to check, various sums of money to the credit of Boothe, upon which the latter drew as necessity required. If at any time the deposits so made were insufficient to meet the plaintiff’s demands, he obtained from the defendant such sums of money as he occasionally required, by giving to the bank his promissory notes therefor, which instruments were discharged from deposits thereafter made by Scriber^ whenever settlements were effected. Thus on April 7, 1899, an accounting was had, and four promissory notes, given by Boothe for $100 each, were surrendered, and he paid $8.79 as interest thereon. Another settlement was had July 19, 1899, and two notes of $100 each, given by the plaintiff to the defendant, were surrendered, but no interest was demanded for these loans. Accounts with Boothe of the money thus deposited to his credit, and of his withdrawals thereof by check, were kept by the bank, and an account of the money which was placed in the bank or paid to or for the plaintiff as a credit on the certificate of deposit for $10,625 was kept by Scriber. It appears from a judgment roll, introduced in evidence at the trial of this cause, that on January 25, 1906, Boothe commenced an action against Scriber in the circuit court for Union County, to recover $6,046.76, as a balance alleged to be due on account of the certificate of deposit, issued for the purpose of purchasing the bank stock, and that proceedings were had to the effect that, on February 23, 1906, a verdict for $463.95 was returned in favor of the defendant in that action, and, judgment having been rendered thereon, has become final, thus conclusively .establishing the fact that Scriber had fully accounted for the money which he thus received from the plaintiff herein. The evidence supports the referee’s finding to the effect that, prior to the commencement of this action, the plaintiff never instructed the defendant to apply any part of the $2,053.33, the amount of the certificate of deposit that was canceled July 28, 1899, towards discharging his promissory note for $2,000; and in the absence of such direction, the bank was not obliged to appropriate the deposit in that manner. Morse, Banking (3 ed.), § 559; Camp v. First Nat. Bank, 44 Fla. 497 33 South. 241: 103 Am. St. Rep. 173).

Thus in London and San Francisco Bank v. Parrot, 125 Cal. 472, 485 (58 Pac. 164, 167: 73 Am. St. Rep. 64), Mr. Justice Harrison, discussing a similar question, says: “The moneys so deposited were not directed to be applied as payments upon the note; and, in the absence of any direction, the bank was not required to make such application. A bank which holds the note of its customer is not required, at its maturity, or thereafter, to apply thereon moneys subsequently deposited by the customer, and an indorser or surety upon the note is not discharged by its omission to make such application.” So, too, in Bacon’s Adm’r v. Bacon’s Trustees, 94 Va. 686, 693 (27 S. E. 576, 579), Mr. Justice Buchanan makes the following observation: “Where the maker has a sufficient sum deposited to satisfy the note when it becomes due and payable, there seems to be a conflict among the authorities as to the duty of the bank to charge the note up to the maker as if it were a check upon the deposit; but if, when the note becomes due and payable, the bank has not sufficient funds of the maker to satisfy the debt, it is not required to appropriate the deposit to the payment of the note, neither is it required to appropriate subsequent deposits in such case to its payment.” In the case at bar the $2,000 note was executed to the defendant, made payable at its bank, and held by it when the counterclaim therefor was interposed in this action. Though there may be some contrariety of judicial utterance as to the liability of a bank for a failure to apply the deposits of its customer to the satisfaction of a note held by it, when by omitting to make such appropriation the rights of a surety may be prejudiced thereby (Pursifull v. Pineville Banking Co., 97 Ky. 154: 30 S. W. 203: 53 Am. St. Rep. 409), the doctrine asserted in that case, if adopted as a rule of practice, can have no application herein, for the plaintiff is the only party liable on the note.

7. An examination of the books of the bank, as disclosed by a copy of so much thereof as relates to the account of the plaintiff, shows that on October 1, 1902, when the larger note was executed, he had overdrawn his account to the extent of $1,503.77. It appears, however, that at that time he was charged $116.95, as interest on overdrafts, which sum having been disallowed at the trial, the money which he received, as evidenced by the books, exceeded the deposits by $1,386.82. By giving the plaintiff credit for $2,053.33, the amount of certificate No. 3709, he had on deposit, subject to check, only $666.51, when the larger note was given. No money was left with the bank to plaintiff’s credit from October 1, 1902, until June 9, 1903, when Scriber deposited for him $2,615.08, which sum equaled the then overdraft, as noted on the books. The interest charged on overdrafts to the latter date had been augmented to $228.26, which having been disallowed, increased the deposit of $2,053.33 to $2,281.59, for which the plaintiff, on June 1, 1903, should have had credit. At that time he owed the bank only $2,000, evidenced by his promissory note, which matured April 1st of that year, the interest thereon having been paid by Scriber to October, 1903. As there was an insufficient amount of money on deposit to plaintiff’s credit when the note matured, and as he never instructed the defendant to discharge that obligation from moneys thereafter to be left with the bank to his credit, we conclude that the manner of conducting the business and in loaning money to the plaintiff upon his notes, until such time as Scriber could make deposits in the bank to his credit, does not warrant the finding made by the trial court that the note for $2,000 was given for the purpose of withdrawing that or any amount of the plaintiff’s money from the bank.

8. As we view the case, there is no dispute as to the facts involved, but rather a controversy as to the rule of law applicable thereto; and, this being so, instead of remanding the cause for a new trial, it will be sent back, with directions to enter judgment in conformity with the findings made by the referee, there being no contest as to the reasonableness of the attorney’s fees for enforcing the collection of the notes. Elliott, App. Pro. § 564; Nodine v. Shirley, 24 Or. 250 (33 Pac. 379); Graham v. Merchant, 43 Or. 294 (72 Pac. 1088).

For the error committed in setting aside the referee’s finding in the particular specified, the judgment is reversed, and the cause remanded, for such further proceedings as may be necessary and not inconsistent with this opinion. Reversed.

Decided April 80, 1909.

On Motion to Retax Costs.

[101 Pac. 890.]

Mr. James D. Slater for the motion.

Mr. Leroy Lomax, •contra.

Opinion by

Mr. Chief Justice Moore.

This is a motion to retax costs. The judgment herein was reversed, whereupon defendant’s counsel filed a statement of the costs and disbursements incurred by his client in preparing for the trial of the cause in this court, containing, inter alia, the following charge: “For making transcript on appeal, $192.50.” Objections to this item having been filed, our clerk considering the issue thus presented, allowed only $53.50, and to review such action this motion was interposed.

9. The transcript shows that the defendant’s counsel submitted a bill of exceptions to the trial judge, who appended thereto a certificate, the material part of which is as follows:

“It is hereby ordered that the original transcript of the testimony taken in said cause be attached to the foregoing bill of exceptions as a part thereof.”

Immediately following appears an “Index,” containing eight typewritten pages, and thereafter is presented a transcript of the testimony given at the trial, to which is attached a certificate as follows:

“I, Ed Wright, county clerk of Union County, State of Oregon, and ex-officio clerk of the circuit court of the State of Oregon for the county of Union, hereby certify that the foregoing transcript is a true and correct copy of the original bill of exceptions in the foregoing entitled cause and of the whole thereof, including the transcript of evidence taken in said cause and which original bill of exceptions is now in my custody in my office.”

A supplemental affidavit procured from that clerk is to the effect that his charges for preparing the transcript on appeal were as follows:

“Pleadings, $40; Bill of Exceptions, $123.30; Indexing, $28.20; Certificate, $1.00; Total, $192.50.”

The plaintiff’s counsel objects to the allowance of any sum for transcribing the original- testimony, contending that the trial judge ordered such testimony to be attached to the bill of exceptions.

Our statute regulating the preparation of a formal written statement for the trial on appeal of an action at law contains the following clauses, to-wit:

“An exception is an objection taken at the trial to a decision upon matter of law.” Section 169, B. & C. Comp.

“No particular form of exception shall be required. The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more.’-’ Section 171, B. & C. Comp.

“The statement of the exception, when settled and allowed, shall be signed by the judge and filed with the clerk, and thereafter it shall be deemed and taken to be a part of the record of the cause.” Section 172, B. & C. Comp.

The bill of exceptions in an action at law, when so settled and allowed, is filed in the office of the clerk of the circuit court, where it remains as a part of the record; and, whén an appeal is perfected from a judgment rendered in an action at law, the clerk having custody of such bill is required, upon the appellant’s application therefor, to make a certified copy thereof that it may be transmitted to this court.

10. When, therefore, the trial judge, pursuant to the agreement of the attorneys for the parties, made the order hereinbefore referred to, instead of dirécting that the original transcript of the testimony be attached to a certified “copy” of the bill of exceptions, it was incumbent upon the defendant, if it desired literally to comply with such order, to procure from the clerk a certified copy of the entire testimony given at the trial. This has been done; and the defendant is entitled to recover the fees allowed by law therefor. Assuming, without deciding, that the statute prescribing the compensation to which a clerk is entitled to making certified copies of papers on file in his office (Section 2935, B. & C. Comp.) was amended so that the fees collected therefor in the case at bar are payable to Union County, and that the rate of remuneration is as follows:

“For furnishing private parties copies of records and files, for each folio ten cents, and for each official certificate thereto, twenty-five cents” (Laws 1905, p. 90, § 1, subd. 4).

The item in the cost bill to which objection is made will be considered.

11. To determine whether or not accurate charges have been made for preparing the record before us would necessitate a careful counting of the folios in the transcript. The copy of the pleadings contains 100 pages, for which $40 was charged, or 40 cents a page, which, at 10 cents a folio, would embrace 4 folios to the page. It may be that the pages do not contain so many folios; but, in the absence of any evidence to the contrary, we shall assume that the computation is correct. So, too, a charge of $123.30 is made for a copy of the bill of exceptions and of the testimony, including .in all 544 pages. This is a fraction over 27 cents a page, which, at 10 cents a folio, would average 2.7 folios to the page; and this computation we shall also take for granted.

12. It will be remembered that a charge of $28.20 is made for indexing. We are unable to determine from an inspection of the transcript that any such service was performed; and this sum will be disallowed. It will also be recalled that the sum of $1 is charged for a certificate. As there are only two official certificates in the record, the compensation therefor will be reduced to 50 cents. Hence the total amount rejected is $28.70.

13. These charges being illegal, no formal objection, was necessary to secure the exclusion thereof. Sommer v. Compton, 53 Or. 341 (100 Pac. 289).

In all other respects the claim as made is allowed; and the disbursements will be retaxed as here ind'eated.

Reversed : Costs Retaxed.