Farmers and Merchants National bank v. Cohn-Chernis-Grunsfeld, Inc.

HOUSER, J. From the evidence adduced on the trial of the action it appears that the plaintiff (hereinafter designated as the bank) brought an action against the defendant for an alleged unpaid balance due on a promissory note which the defendant had executed in.favor of the bank. As a defense to the action, in substance the defendant claimed that it was entitled to a credit on the payment of said note for the reason that, without any authorization given by it to do so, the bank wrongfully had charged to a checking account that the defendant had with the bank certain items of interest and installments of principal that from time to time had accrued on another promissory note that theretofore had been given to the bank by the president of the defendant corporation in his own behalf and on account of a private and personal indebtedness that he owed to the bank. On the trial of the action it was admitted that the bank had no direct authorization from the defendant to make the charges to which reference hereinbefore has been had; but in order to counteract the effect of such alleged facts, the bank asserted that because, monthly, during a comparatively long period of time it had rendered to the defendant a statement of its account with the bank, which statement invariably included a charge of an item of interest and installment of principal on the unpaid note of the president of the defendant company,—to which charge the defendant interposed no objection,—the- defendant was bound first, as for an account stated; secondly, that by certain acts, conduct and declarations of the defendant it had ratified such charges; thirdly, that by reason of such acts, declarations and conduct, coupled with the fact that in reliance upon them as a ratification of such charges, the bank had changed its position with reference to other financial debtors who were directly interested and concerned with such charges,— which otherwise it would not have done,—an estoppel had been created as to the defendant; and fourthly, that for a valuable consideration moving from the bank to the defendant, an accord and a satisfaction as to the differences exist[84]ing between the parties had been respectively reached and consummated.

The case was tried before the court sitting with a jury; and in the course of such trial it was stipulated by the respective parties that certain issues of fact only should be submitted to the jury for its determination, and that based upon such findings as to the essential issues thus submitted in the case, a judgment should be rendered by the trial court. In accordance therewith, following the introduction of evidence, the argument by respective counsel, the instructions to the jury, and the return of its verdict, judgment was rendered in favor of the bank. It is from such judgment that the instant appeal is taken.