The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1929-11-04

Walsh county. N. D., Hon. G. w
Butts. judge.
Affirmed.
Opinion Of the cour: by Burke
Oh. j.
James Morris. Attorney General,
Bismarck, N. D., and T. I. Dahl,
states attorney. Grafton. N. D.. at
torneys for plaintiff and respondent.
DePuy, Greenburg g. DePuy. Graf
ton. N. D., attorneys for defendant
and appellant.
E. o. Klcye, plaintiff and rcspon-
dent
The State OF North Dakota. doing
business as the Bank of North
Dakota, defendant and appel
liant.
Plaintiff, the owner of a warrant
against Mercer county. deposited the
same in his bank for collection and
credit. The warrant in the usual
course of business reached the Bank
Of So nton for collection and remit
lance. The Bank of Stanton accepted
the county t%rcasurer's check drawn
OH the First National bank of Man.
dan and payable to itself in payment
Of the warrant. 1t deposited this
check for collection and credit with
the defendant. its depository and cor
respondent, and drew a draft on the
latter for the amount Of the cOllcc-
ton less charges. which it Transmits
ted to the forwarder of the warrant.
Subsequent to the deposit and credit
the Stanton bank was closed as in
solvent. Thereafter defendant col
lected the check. Later when the
draft was presented payment was re-
fused. The Stanton bank was in
debted to the defendant and de-
PENDANT set off its credit against such
indebtedness and settled with the re.
ceiver. Plaintiff filed a claim with
the receiver for the amount OF the
warrant and the claim was allowed as
a preferred claim. but plaintiff has
received nothing OH account thereof.
Plaintiff now seeks to recover from
the defendant. HELD:
I. The Stanton bank was the agent
OF the plaintiff to collect the war
rant.
2. 1t was its duty to collect in cash.
3. When collection was made in the
form of a check this check was SUBJ
stituted for the warrant and the
plaintiff had the right to claim it as
his property and follow 1t as such.
4. When the check was deposited
with the defendant and the defendan.
without notice Of plaintiffs rights
credited the Stanton bank with the
amount thereof. title thereto passed
and the relation of debtor and crcdi--
tor resulted.
S. Under the circumstances de.
fendant was a holder for value.
6. Defendant was not the agent of
the plaintiff for collection OF the
check.
Z. There vas no negligence on the
part Of the defendant in its handling
Of the item.
s. Defendant had the right with the
consent Of the receiver to set off the
credit Of the Stanton bank with it
against debts due and owing from the
latter to it.
tSyllabus)
Appeal from the district court Of
Burleigh county; Hon. Fred Janson-
ius, Judge.
Action for the recovery Of money.
From a judgment in favor Of the
plaintiff defendant appeals.
Reversed. Opinion Of the court Of
Nuessle. j.
P. NJ. Butler, Of Bismarck, for ap-
pellant.
E. o. Klevc, McClusky. per Sc, and
Richie a. Ployhar, OF Valley City. for
respondent.
State Of North Dakota, plaintiff and
respondent
VS.
D. w. Reyes, defendant and appel.
liant.
l. It is not misconduct on the part
Of the states attorney, in his address
to the jury, to comment on state
naents made by the defendant as
testified to by some witnesses even
though the defendant deny the same
SO long as the comment is a reason
able and legitimate deduction or in.
ference from these statements.
2. In 4 prosecution for assault alt
battery by the defendant upon hi.