Supreme Court of South Carolina, 1919

Southern Stove Works v. Converse Savings Bank

Supreme Court of South Carolina · Decided July 14, 1919 · Watts

100 S.E. 75; 112 S.C. 230; 1919 S.C. LEXIS 147 (South Eastern Reporter)

Counsel

Messrs. Cornelius Otts and C.Y. Brown , for appellant, submit: This case is appealable: 64 S.C. 487 -8; 92 S.C. 361 ; 77 S.C. 319 . No error in the charge: 91 N.W. Rep. 257; 115 P. 80; 6 Am. Rep. 160; 50 A. 189; 54 A. 480; 44 Am. Rep. 138; 17 A. 336; 23 L.R.A. (N.S.) 1092, and note; 23 S.C.L. 259. No error in the Court's ruling as to evidence: Mechem on Agency (2d Ed.), pars. 290-1; 55 S.C. 574 ; 44 S.C. 91 ; 114 N.W. 195; 55 N.W. 43; 15 S.C.L. 412; 59 S.C. 155 ; 72 S.C. 560 , 561 ; 15 S.C.L. 201; 57 S.C. 282 -283; Wigmore on Evidence, vol. I, par. 581. This Court will consider an appeal from an order granting a new trial when the order is based upon an error of law, and where a judgment absolute may be Messrs. Boyd Brown , for respondent, cite: The principal issue is whether or not entry of credit for this check by the defendant to the Bank of Commerce was such constructive payment as would require the defendant to account for its value, and the principal concern of the Court's charge was about this issue; the Court having used the expression "paid" and "charge on the defendant's books" as synonymous terms: Negotiable Instruments Law, 28 Stat., p. 688, secs. 185, 189, 132, 141. The Negotiable Instruments law changes the rule declared in 41 S.C. 177 , and like cases, and establishes the rule of the dissenting opinion of Justice Jones in 69 S.C. 383 . What constitutes payment? Black's Law Dictionary, 30 Cyc. 1180; Negotiable Instruments law, sec. 191. Law in the Hull case is not as set out in the charge at f. 108 and f. 110; 23 S.C.L. 259. Book entries alone do not operate as payment: 39 S.C. 175 ; 155 U.S. 556 ( 39 L.Ed. 259 ); 179 P. 248. "Receipt of a draft by the bank `does' not make it a debtor to plaintiff, and it would not become such debtor until the collection and possession of the proceeds of the draft, either actually or by settlement of accounts between the parties:" 148 U.S. 50 ; 155 U.S. 556 ( 39 L.Ed. 259 ); 94 Fed. 474; 20 N.W. 36; 6 N.D. 184 ; 69 N.W. 51 . The same rule applies to checks handled for collection: 1917d, 1002 (1005); Bolles on Banking, p. 194; Michie, pp. 1417-1420; 90 Ky. 431 ; 9 L.R.A. 533; 14 S.W. 411; 148 U.S. 50 ; 37 L.Ed. 363 ; 3 Sup. C. Rep. 533; 2 Wall. 252; 17 L.Ed. 785 ; 49 Ohio St. 401 ; 31 N.E. 346 ; 5 Dill 104; Fed. Cases, No. 8289; 433 C.C.A. 583; 102 Fed. 785; 66 Miss. 479 ; Am. St. Rep. 579; 6 So. 233; 22 Mont. 140 ; 55 P. 1051 , 1097 ; 53 Neb. 61 ;.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Watts.

1 This is an appeal from an order granting a new-trial, after jury had found a verdict in favor of plaintiff, by his Honor, Judge Sease, who had tried the case. His Honor based his order on the ground that he had committed error in his charge -to the jury. He granted the order, not as a matter within his discretion, because he did not approve of the verdict, but on the. ground that he had misdirected the jury as to the law of the case. This makes the matter appealable, and the .sole question is: Did the Judge err in stating to the jury the law applicable in the case? If he did, the case must be affirmed, and appeal dismissed.

2 His Honor committed error when he instructed the jury that payment and entry on the books were the same; he confused the jury when he instructed them that entry on the book of the bank of the item received from the collecting bank constituted payment of the item. This was error, and practically amounted to a peremptory instruction to find for the plaintiff. It is the custom of the banks to make such entry that does not constitute payment. Such entry stands when the item is actually paid. When not paid or collected, the bank has the right to charge it off. When a check or draft is drawn and handed to the bank, the bank credits its customer with that amount. If the draft, check, or item is not collected or paid, the bank has the right to deduct it from the customer’s account. The entry by the bank is simply one of convenience to keep the customer’s account straight. The instruction of the Court in this particular was erroneous. He repeatedly and erroneously *234 charged the jury in this particular that entry on the book of the item received from the collecting bank constituted payment of the item. His Honor confused the terms of payment and entry on the books being the same. When the check was entered on the books of the bank, and forwarded for collection, it was not a payment until actually paid. His Honor erroneously instructed the jury and was right in setting aside the verdict rendered and granting a new trial.

Judgment affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.