STATE BANK OF READING v. M. RONAN

Minnesota Supreme Court1919-12-05No. No. 21,449

144 Minn. 236

Summary · law.co

Holding. The trial court's judgment for the plaintiff is affirmed. The evidence supported the jury's verdict that the defendant agreed to deposit sufficient funds to cover the check, and no reversible error occurred in the court's rulings.

The defendant drew a check for $3,035.70 payable to Ed. Kizer for cattle. Kizer and subsequent banks indorsed and sold the check to the plaintiff bank on May 23, 1918. When the plaintiff presented the check, the defendant lacked sufficient funds but asked the bank to hold it while he arranged a deposit within a reasonable time. The defendant later stopped payment, claiming Kizer had fraudulently misrepresented the purchase price. A jury found in favor of the plaintiff.

The defendant appealed on multiple grounds. First, he argued the trial court's jury instructions were erroneous, but no exception had been taken at trial and no motion for new trial was filed, so this argument could not be reviewed. Second, he moved to dismiss after the plaintiff rested, but the court properly denied this motion because the evidence supported a finding that the defendant had agreed to deposit funds to cover the check. Third, the defendant objected to testimony about what his employee said when the check was presented, but this testimony was later corroborated by additional evidence showing a pattern of similar requests and deposits, and no renewed motion to strike was made.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a defendant who stops payment on a check after requesting the holder to retain it pending deposit may raise defenses based on prior fraud by the payee
Whether testimony regarding an agent's statements about holding a check and depositing funds was properly admitted
Whether a motion to dismiss was properly denied where evidence showed the defendant requested the check be held pending deposit

Procedural posture

The defendant appealed from a judgment entered on a jury verdict in favor of the plaintiff bank in an action on a check.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Holt, J.

On May 10, 1918, defendant drew a check upon the plaintiff bank for $3,035.70, payable to the order of Ed. Kizer, and delivered it to Kizer in payment of cattle bought. It is alleged that Kizer on the same day for value sold and indorsed the check to the First National Bank of Wilmont ; that two days later the Wilmont bank for value sold and indorsed the check to the ‘State Bank of Worthington; that the latter bank, in turn, for value sold and indorsed the check to plaintiff on May 23, 1918; that when plaintiff received the check defendant did not have sufficient funds on deposit with plaintiff to pay the same, and that thereupon plaintiff presented the check to defendant, who directed plaintiff to hold it, and agreed to deposit sufficient funds within a reasonable time to pay it. The answer alleged that Kizer had falsely stated to defendant’s agent that the agreed purchase price for the cattle was the amount of the check, whereas in fact it was much less, and that defendant stopped payment of the check before it had been charged to his account or paid by plaintiff. There was a verdict for plaintiff, upon which judgment was entered and defendant appeals.

There was no exception taken to any part of the charge when it was given, and the only way in which the court’s instructions could thereafter be questioned would be by a motion for new trial under section 7830, G. S. 1913. There was no motion for a new trial. “An assignment of error, based upon the charge, is not considered, unless an exception is taken at the trial, or there is a specification of error in the motion for a new trial.” Ogren v. City of Minneapolis, 121 Minn. 243, 141 N. W. 120. The charge as given must therefore be accepted as the law of the case, and under that law the verdict is justified by the evidence.

When plaintiff rested there was a motion to dismiss and an exception saved. Defendant was not entitled to a dismissal. Under the case made by plaintiff, the jury could well find that when the check was presented the defendant did not have sufficient funds to meet it, and when his attention was called thereto he requested the check to be held a couple of days to enable him to make a deposit to take care of it, and that it was customary for defendant and his employee to make similar requests and keep the promises made in regard to the same.

The only other assignment of error open to review is upon the court’s refusal to strike out an answer given .by defendant’s cashier as to what defendant’s employee, in charge of his business, said when the cheek was there presented on May 24, 1918. The question was: “What was said about the cheek?” The answer was: “He told me that they would have funds in the course of acouple or three days to take care of that check, and advised me to hold it.” Then defendant’s counsel said: “Dbjected to and move to strike it out unless he shows that this agent had any authority to borrow money by this form of overdraft.” To this ruling there was an exception, but after two or three more questions this occurred:

“Did Paul Wassmund (defendant’s employee) say anything about the check not being all right?”

A. “He did not.”

Q. “Just merely told you to hold it, and that there would be funds there in a few days to meet it?”

A. “Yes, sir.”

The attorney for defendant then stated: “Objected to as leading, and move to strike it out.”

There was no exception to this ruling refusing to strike the answer. Later in the trial evidence was given that both defendant and his employee had, onseveral occasions, preferred similar-requests to the bank to hold checks representing overdrafts on defendant’s deposit account until further deposit could be made; that plaintiff had so held checks drawn ,by them, and that deposits had been made to take care of such checks. It also appeared that the employee named was in charge of defendant’s place of business and drew and issued checks on defendant’s deposit account with plaintiff. No further motion to strike out the tes-, timony as to what Paul Wassmund said when the check was presented was made. From the above statement it is clear that no prejudicial er ror can be based on the ruling referred to, even were it conceded that the answer when given should have been stricken.

The judgment must be affirmed.