Menard v. Cox

Bullard, J., delivered the opinion of the court. The plaintiff alleges that one Potts, obtained a loan from the bank, of which the former was cashier, for one thousand five hundred dollars, which was paid over to the defendant [169] Cox, as agent of the borrower, after deducting the discount for one year. That after the defendant had received the whole amount, he presented to him a draft or check, signed by Potts, for three hundred dollars, which the plaintiff refused to pay, as the drawer had no funds. That the said Cox represented to him, that Potts was much in want of that sum, and if he, the plaintiff, would advance it, that he would be personally bound to refund the amount; whereupon the plaintiff alleges he did advance that sum to Cox, on his personal responsibility and promise to refund. Where the cashier of a bank refuses to pay a check, on the ground that the drawer had no funds in bank, but at the same time advances the money to the leaver, it will be presumed the cashier paid his own money as a loan, which will authorise him to recover in a personal action in his own name against the borrower. When the record furnishes no point on which the appellant could reasonably hope to obtain a reversal of the judgment on appeal, it will be affirmed with ten pet' damages and costs. The defendant pleaded the general denial, and the issue between the parties, was tried by a jury, whose verdict was in favor of the plaintiff and the defendant appealed. The allegations in the plaintiff’s petition, are fully proved by evidence received without exception, in the District Court, The record furnishes no point, on which the deferidant could reasonably hope to obtain a reversal of the judgment in this court. It is, however, contended by the counsel for the appellant, that the sum claimed, was paid out of the funds of the bank, of which the plaintiff was cashier, and that it, was in fact an overdraft, which the cashier cannot recover, without first showing that he has been rendered responsible to the bank. But there is no evidence that the money was paid out of the funds of the bank; on the contrary, it is shown that the plaintiff refused to pay the draft or check, and advanced the money to the defendant as a loan. We must presume that he advanced his own money, and that the transaction was wholly personal between the parties. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with ten per cent, damages and costs.