Luckehe v. First Nat. Bk. of Marysville

BUCK, J.,

pro

tem.

This is an appeal from a judgment rendered against the defendant National Bank for the sum of $1,050 with interest, being the amount evidenced by a certain certificate of deposit made and delivered by the defendant to the plaintiff.

Upon a former appeal in this case an opinion was rendered by the supreme court (193 Cal. 185 [223 Pac. 547]), wherein the law covering every phase of the case was fully expounded. As was stated by the supreme court in regard to the first trial of the case, it may be also said of the second trial, that the case was shifted to one of negligence based not upon contract arising out of the issuance of the certificate of deposit sued upon, but arising out of negligence based upon the defendant’s liability to the plaintiff for. its failure to use due care in the collection of a different certificate of deposit, issued to plaintiff by the First National Bank of G-ridley. In its amended answer defendant sets up defenses alleging, in effect, first, that plaintiff suffered no injury on account of

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any alleged negligence in the attempted collection of the certificate of deposit on the Gridley Bank, because the bank, at the time the certificate was presented for collection, “was unable to pay the same, or any portion thereof, and did not have sufficient money either on hand or which it could procure to pay said certificate, or any portion thereof, and its refusal to pay the same upon demand . . . was because of its inability so to pay and lack of money for payment thereof,” which said inability continued from the time of the presentation of said certificate on December 13, 1920, up to and including the seventeenth day of December, 1920. And for a second defense it was alleged, in effect, that there was no neglect of duty on the part of defendant for its failure to make the collection, because, in seeking to serve plaintiff, the defendant acted in all respects in accordance with “a general custom or usage in the matter, practice, and manner of making collections by a bank or banking institution of a draft, certificate of deposit or other paper delivered and received by a bank from the drawer or owner upon and for collection” upon some other bank. The trial court made special findings against each of these defenses, and on this appeal it is defendant’s contention that the evidence was insufficient to sustain these findings.