McCord v. California National Bank

Temple, C. — This is an appeal from the judgment, and from an order refusing a new trial.

The action is by a bank depositor; - and the question is, whether the bank rightfully paid a certain check for one thousand dollars.

The case was tried without a jury. At the trial there was a material and substantial conflict between the testimony of the bank teller and the testimony of the plaintiff, who was corroborated by another witness. The findings support the testimony of the teller, whose statement, therefore, we are forced to adopt.

On the 4th of November, 1890, the plaintiff made a bet upon the result of an election. What the election was does not appear, but it seems to be conceded that the wager was forbidden by our codes. The wager was at night, and a check for one thousand dollars upon defendant was drawn in favor of J. A. McRae, — the other party to the wager, — and placed in the hands of one Hickman, as stake-holder.

The next morning, one Frederick, who was authorized by plaintiff to notify the bank not to pay the check, met the paying-teller in the street, and told him about the bet and the drawing of the check, and advised him not to pay the check, saying that he had no interest in the [200]matter except as the friend of McCord, and would not like to see the boy lose his money. The teller testified that “ he did not at any time demand that I should not pay the check, and conveyed the impression to me that he was acting on his own responsibility.” That same day Hickman presented the check for payment, but the teller refused to pay it. Later in the day Hickman and McRae called together for the same purpose, but payment was again refused. The refusal was because of what Frederick had said, and to give plaintiff a chance to stop the payment. On the morning of the 6th, Hickman again presented the check and asked that it be certified. Hot having heard from plaintiff, and thinking he had declined to páy as long as he would be justified in doing, the teller consented.

Of course the bank then became the principal debtor, and the check was then virtually paid. The teller at the time drew a memorandum check against plaintiff’s account, as his custom was in such cases.

On the 12th the check was paid, and the amount carried to the account of Hickman, and on the same day, after such payment, plaintiff .drew his check for the amount and presented it in person. Payment was refused on the ground that plaintiff had no balance to his credit at the bank.