Sig Ellingson & Co. v. Polk County State Bank

1 Reported in 242. N.W. 626. Two actions, one by Sig Ellingson Company, a corporation, against the Polk County State Bank and J.L. Wentzel, and the other by G.P. Baird against the same bank, were tried together. There were findings for the plaintiff Sig Ellingson Company in the sum of $1,087.90 and in favor of the plaintiff Baird for $412.10, with interest on the first sum from October 9, 1929, and upon the latter sum from October 12, 1929. The defendant Polk County State Bank appeals from the orders denying its motions for a new trial. The defendant Wentzel was a stock buyer in Polk county. Sig Ellingson Company was a corporation doing a commission business at the stockyards in South St. Paul. On October 8 or 9, 1929, Wentzel drew a sight draft against Ellingson Company on the Stock Yards National Bank of South St. Paul in favor of the defendant Polk County State Bank for $1,500. The draft was sent by the Polk county bank, and the money returned by the South St. Paul bank to the Polk County State Bank, and was credited to Wentzel's account on October 11, 1929. Wentzel was indebted to the Polk county bank on overdue notes in an amount exceeding $1,500. On October 12, 1929, the bank notified Wentzel by mail that it had charged off the notes against his account, leaving nothing or substantially nothing in it. After the check was deposited to Wentzel's account he issued checks for stock bought to be shipped to Ellingson Company amounting to $412.10. The defendant bank refused payment. The plaintiff Baird received one of the checks. A number of others, similarly situated, who had received checks assigned their claims to Baird, and he brought suit on his own and the assigned claims. They amounted to $412.10. The amount claimed by Ellingson Company, $1,087.90, is the balance of the $1,500. Mr. Justice Loring, having been counsel for the defendant in the court below, took no part. Mr. Chief Justice Wilson, Mr. Justice Stone, and Mr. Justice Olsen are of the view that there can be no recovery by either of the plaintiffs. Mr. Justice Holt, Mr. Justice *Page 50 Dibell, and Mr. Justice Hilton are of the view that the plaintiffs should recover the amount fixed by the trial court. The rule, in which all agree, is that when a member of the court is disqualified and the other members are equally divided the order from which the appeal was taken will be affirmed. Wilson v. Jamison, 36 Minn. 59, 29 N.W. 887, 1 A.S.R. 635; Nelson v. M. St. L. Ry. Co. 41 Minn. 131, 42 N.W. 788; Gran v. Spangenberg, 53 Minn. 42, 54 N.W. 933; State v. Corrivan,93 Minn. 38, 100 N.W. 638; Jordan v. N.W. Elec. Equipment Co.117 Minn. 522, 134 N.W. 1134; Lutzer v. St. Paul Table Co.121 Minn. 254, 141 N.W. 115; Foley Bros. v. County of St. Louis,158 Minn. 320, 197 N.W. 763; Polin v. St. Paul Union Depot Co.159 Minn. 410, 199 N.W. 87; Day v. Day, 180 Minn. 151,230 N.W. 634; 1 Dunnell, Minn. Dig. (2 ed. Supp.) § 290. Orders affirmed.