Maronde v. Vollenweider , 220 Mo. App. 67 ( 1926 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1201, n. 42. Banks and Banking, 7CJ, p. 615; n. 65; p. 619, n. 1. Bills and Notes, 8CJ, p. 539, n. 17; p. 540, n. 18, 21; p. 543, n. 52; p. 544, n. 56; p. 1069, n. 64. This is a suit on an account. Petition was filed in Webster county but the venue was changed to Greene county where the cause was tried before the court without a jury, and the finding and judgment went for defendant and plaintiff appealed.

The petition is in the usual form. The answer pleads a discharge from liability, said plea being based upon the alleged negligence of plaintiff in presenting a check, given him by defendant, within a reasonable time. A reply put in issue the new matter pleaded in the answer.

Plaintiff resides at Brogan, Oregon, and defendant at Seymour, Missouri. Defendant went to Oregon in 1921 and engaged in buying and shipping apples, and did a banking business at the United States National Bank of Vale, Oregon. Defendant purchased apples from plaintiff and on October 21, 1921, gave plaintiff a check on the United States National Bank of Vale, Oregon, for the sum of $1207.95. There was no bank in Brogan where plaintiff resides, so he did his banking business with the Ontario National Bank of Ontario, Oregon, and with the United States National Bank of Vale. Brogan is at the north terminus of a branch line railroad that runs out from Ontario. Vale is about midway between Ontario and Brogan on this branch line. On receipt of the check plaintiff mailed it, on the first mail out, to the Ontario National Bank where he had an account. The Ontario National Bank sent the check to its correspondent in Portland, Oregon, and it passed through the Federal Reserve Bank of Portland and was presented at the United States National Bank of Vale, the bank upon which it was drawn, October 26th, two days after this bank had failed, and payment, therefore, was not made.

The learned trial court made a finding of facts as follows:

"The court finds that Brogan is a small town, without banking facilities, at the end of a branch line which leaves the Union Pacific Railroad at Ontario, Oregon. Ontario is about forty miles distant from Brogan, and the town of Vale is on said branch line about halfway between Brogan and Ontario. Vale, at the time of the matter in controversy, had three banks and Ontario had one or more banks. There is a daily train each way on said branch line between Brogan and Ontario, which train passes through Vale. There are express offices in Brogan, Vale and Ontario. Sometime prior to October 20, 1921, defendant purchased certain apples from plaintiff at an agreed price, the amount sued for by plaintiff. On the afternoon of October 20, 1921, the defendant gave the plaintiff a check on the United States National Bank at Vale, Oregon, for the purchase price of said apples. The plaintiff on the next morning, October 21, 1921, sent this check by mail for deposit in a bank in Ontario. This check passed through Vale and arrived at the Ontario Bank on the afternoon of October 21, 1921. The Ontario Bank, instead of sending it to Vale for collection, forwarded it to the Northwestern National Bank in the city of Portland, Oregon, some four hundred miles away, and said Northwestern National Bank sent said check to the Federal Reserve Bank in Portland, Oregon, and the Federal Reserve Bank then sent the check back over the same line it had come through Ontario to Vale, Oregon, for collection. The check arrived in Vale, Oregon, on its return journey, on the 26th day October, 1921. In the meantime, namely, on October 24, 1921, the United States Bank of Vale closed its doors and stopped business at about two o'clock in the afternoon. And when said check was presented the United States National Bank of Vale was closed and the check was protested. That the town nearest to Brogan containing banking facilities is the town of Vale.

"The court further finds that the defendant had sufficient funds in the United States National Bank of Vale, from the time the check was issued until the bank closed its doors, to pay this check and all other checks that he had issued, and that said check would have been paid if it had been presented for payment prior to the afternoon of October 24, 1921, when the United States National Bank of Vale closed its doors; that plaintiff had been regularly keeping an account in said United States Bank at Vale, and also kept an account in the Bank at Ontario; that if said check had been sent directly to a bank or other agency in Vale it would have been presented in the regular course of business at the latest on the afternoon of October 22, 1921; that the forwarding of the check through Vale to Ontario and from Ontario to Portland, Oregon, and then from Portland, Oregon, back over the same line through Ontario to Vale was an unnecessarily circuitous route and delayed the presentation of the check to such an extent that the loss should fall upon the payee of the check and not upon the drawer; that no custom had been shown which will justify the forwarding of said check by such circuitous route, and that if any such custom were shown it would be an evasion of the legal duty of the Ontario bank to present said check for payment within a reasonable time."

Plaintiff received the check about 3 o'clock in the afternoon of October 20th and sent it out on the first mail thereafter, which was the next morning, for deposit to his credit in the Ontario National Bank. The deposition of the cashier of the Ontario National Bank was read in evidence. He testified that the check was received by his bank sometime in the afternoon of October 21st, and the amount thereof was placed to plaintiff's credit; that his bank handled daily 30 or 40 checks drawn on banks in Vale; that his bank sent such checks to the Northwestern National Bank of Portland, which was the nearest clearing house; that the check was forwarded on the evening of October 21st; that the action taken by the Ontario National Bank respecting this check followed the custom.

It is plain that the check after it reached the Ontario National Bank was handled as all other checks on banks in Vale were handled, and if plaintiff is to be defeated it must be upon the theory that he was guilty of negligence (1) in not immediately taking or mailing the check direct to the United States National Bank of Vale, or (2) that it was negligence on the part of the Ontario National Bank to handle the check as it did all others drawn on banks in Vale. To state the first proposition is to answer it. Defendant does not contend that plaintiff should have by the quickest means and manner, presented in person or by messenger or any other agency, the check to the United States National Bank. Such conduct would have bespoken the character of individual who usually loses his money by placing more confidence in old shoes, old cans, knot holes, etc. than in the banks of the country. Hence we may pass to the second proposition.

No statute or decision was introduced, and no claim is made that the laws of Oregon, where all the transactions respecting the subject matter of this cause occurred, are different to the laws of the forum. A check must be presented for payment within a reasonable time after issue or the drawer will be discharged from liability to the extent of the loss caused by the delay. [Sec. 972, R.S. 1919.] In determining what is reasonable or unreasonable time regard is to be had to the usage of trade or business respecting the instrument and the facts of the particular case. [Sec. 982, R.S. 1919.] When plaintiff's conduct respecting the check is measured by the rule prescribed by the statute we do not find that he was remiss in any particular. The great weight of authority is to the effect that a collecting bank which takes for collection paper payable at a distance is guilty of negligence in sending it direct to the bank or person by whom payment is to be made. [3 R.C.L., p. 627, sec. 255.] The following authorities, and many others support the text quoted. [Farley National Bank v. Pollock, 39 So. (Ala.) 612, 2 L.R.A. (N.S.) 194; German National Bank v. Burns, 21 Pac. (Colo.) 714; Drovers' National Bank v. Anglo-American Packing Provision Co., 7 N.E. (Ill.) 601; Anderson v. Rogers, 36 Pac. (Kan.) 1067, 27 L.R.A. 248; First National Bank of Chicago v. Citizens Savings Bank, 82 N.W. (Mich.) 66; Minneapolis Sash Door Co. v. Metropolitan Bank, 78 N.W. (Minn.) 980; Western Wheeled Scraper Co. v. Sadilek, 59 N.W. (Nebr.) 765; Merchants National Bank v. Goodman, 2 Atl. (Pa.) 687; Winchester Milling Co. v. Bank of Winchester, 111 S.W. (Tenn.) 248; Pinkney v. Kanawha Valley Bank, 69 S.E. (W. Va.) 1012, Ann. Cas. 1912 B 115; American National Bank v. Savannah Trust Co., 90 S.E. (N.C.) 302; Wingfield v. Security National Bank, 162 N.W. (S.D.) 309; Russo-Chinese Bank v. National Bank of Commerce, 241 U.S. 403, 60 L. Ed. 1065.]

The law as stated, supra, is the law of the land generally, and is the law of Missouri. [American Exchange National Bank v. Metropolitan National Bank, 71 Mo. App. 451.] The Ontario National Bank to which plaintiff sent the check for collection and deposit proceeded in the usual manner and was not guilty of negligence in doing so. [Herider Herider v. Phoenix Loan Association, 82 Mo. App. 427; First National Bank v. Korn, 179 S.W. (Mo. App.) 721.] In Herider Herider v. Phoenix Loan Ass'n, supra, the court held that the forwarding bank was negligent under the facts there obtaining, but in discussing a contention there presented the law was clearly stated. In that case we find this language:

"But defendant seeks to avoid the error of the Metropolitan Bank in sending the check to Marshall instead of Slater by the contention that it did not result in any more delay than the law permitted. The argument is based on the law that the holder of a check drawn on a bank at a distant place may place it in a bank for collection and that such bank, if it had no correspondent in the place where the check is payable, may on the day of receiving it or on the next day, transmit it to a correspondent at some other place, who in turn can wait until the next day after receiving to transmit to a correspondent at some other place, until it reaches a bank which has a correspondent at the place of payment; provided the route of transmission is not unreasonably circuitous."

The Ontario National Bank was acting for plaintiff and if that bank was not negligent then of course plaintiff was not. The mere fact that the check was sent on a rather long and circuitous route is no evidence of bad faith or negligence if such was the common route of all checks under similar circumstances. According to conceded facts, we may say, the check in question was handled by the National Bank of Ontario as were all other checks of like or similar origin.

We do not deem it necessary to prolong this discussion. We find no substantial evidence in this record to sustain the conclusion reached below. According to the law as we have found it if the National Bank of Ontario had acted differently, that is other than according to the usual and customary procedure in such cases, and payment on the check had been refused, then said bank would have been guilty of negligence.

Whether a given state of facts constitutes due diligence in the presentation of check to the drawee bank is a question of law. [First National Bank v. Korn, supra.] The facts here are not controverted, and they are not sufficient to defeat recovery. The cause should be reversed and remanded and it is so ordered. Cox,P.J., and Bailey, J., concur.