
    VIRGIL STATE BANK, Appellant, v. MILLER, Respondent.
    (167 N. W. 234.)
    (File No. 4194.
    Opinion filed April 12, 1918.)
    1. Banlcs and Banking — Suit for Moneys Advanced — Charging Defendant’s Account, Checks Drawn hy Alleged Agent — Sufficiency of Evidence re Finding.
    In a suit by a -bank to recover for money advanced by it upon checks drawn by an alleged agent of defendant, held, that a finding that certain checks and drafts, charged by plaintiff to defendant’s bank account, and paid by the bank, were not drawn -by defendant by his agent, and that payment thereof by plaintiff was not justified, was justified under the evidence.
    3. Same — Livestock Dealings on Defendant's Bank Account, Through Agent — Failure of Bank to Require Delivery of Bills of Lading, Effect — Finding Approved.
    Where, in,, a suit by a bank to recover for moneys advanced by it upon checks drawn by an alleged agent of defendant, trial court found that under the agreement between the bank, the defendant’s bank account would be used by one M. in livestock dealings, that M. should make sight drafts upon bills of lading procured by him, for proceeds of stock shipped and sold to drawee of the drafts, and deliver the bills' of lading to the bank as security for funds advanced by it on such drafts, but- that M. failed, and plaintiff neglected, to have them so delivered, that the bank .permitted the cattle to be shipped by M. in his own name without taking such security, that certain loss on a dishonored draft was dealt with 'by plaintiff by taking M’s note, which was thereafter returned to M., and defendant’s account charged with the amount, and that the bank had no authority from defendant to do so, held, that evidence sustained the finding, and that conclusibn of law that plaintiff’s loss on the draft was caused by its own negligence, was justified.
    Appeal from Circuit ‘Court, Beiaclle County. Hon. Alva E. Taylor, Judge.
    S’ee, 36 S. D. 23, 153 N. W. 004.
    Action by the Virgil State Bank, against S. M. Miller, to receiver for moneys advanced upon certain checks alleged ito- have been1 drawn by defendant by an alleged .agent. From a judgment foir defendant, and from an1 order denying a' new trial, plaintiff appeals.
    Affirmed.
    ' B. M. Wagner, for Appellant.
    
      Null & Royhl, for- Respondent.
   GATES, J.

Reference is made to 36 S. D. 23, 153 N. W. 904, for a partial understanding olf the case. Tibe case Is. now before us upon the former evidence, but1 upon new findings of fact, .conichvsioois of law, andl judgment. As; will be seen from the allegations of the complaint quoted1 in the farmer opinion, it was claimed that defendant was indebted to plaintiff “for money 'advanced! by it, and- paid by it upon certain; checks drawn by •thie defendant, by -one C. B. Miller, bis agent duly authorized thereto.”

The trial court has found that during the months cif July. Auguisit, and1 September, 1911, -checks anld drafts- aggregating $1,912.99 were charged to defendant’s account in plaintiff’s bank which were not drawn by defendant by C. B. Miller, his agent, and no testimony was offered1 justifying their payment or showing agency in the persons purporting -so to act as defendant's agents. The trial court also found! that tine sum of $3,622.56, being the amount of loss on a sight draft for $9,995, drawn by C. B. Miller personally upon Chicago commission, merchants and cashed1 by plaintiff, was wrongfully charged to defendant’s bank account. By reason of these facts the court -concluded that there was 1» overdraft. Plaintiff appeals from the judgment and order -denying a new trial.

So far -as the items aggregating $1,912.99 are concerned, there is nothing further to be said. The determination of tíre court was -fully justified As to the last item, we deem it proper to a complete understanding of the situation to reproduce the following portion of the findings: of fact, viz:

“That when said account was opened the defendant stated ■to the 'officers of plaintiff bank that said C. B. Miller would -engage in tine purchase and sale of stock at and in the vicinity of Virgil, and that the said1 bank account of the -defendant would be ¡usted by said C. B-. Miller for that purpose, and -that when stock was purchased by said C. B. Miller if should be shipped and consigned to oommliission meiidhonfe at ¡Chicago ¡and other points for -sale, and that said1 C. B. Miller should get bills -of lading' and make- sight 'drafts on said 'commission merchants: for the proceeds of stock -so shipped and1 soldi by him and deliver such bills of lading to the bank honoring the sight draft as security for funds advanced on such sight drafts, and ¡that said C. B. Miller from time fa time between the dates above Mentioned) followed that practice in the shipment and -sale of stock so purchased1 by hito, except js hereinafter shown.”

This finding, except the italicized' portion, was a finidiing requested by plaintiff. . The last italicized clause refers to the' items above mentioned. The first italicized portion wais sus'falined by tire evidence of defendant. The dteiterm motion of whether or not that clause should be inserted in the finding rested -upon the credibility of witnesses. The trial court believed' the defendant. We cannot now say it should! not have done so. After describing the .purchase of cattle and their shipment, and the drawing and depositing of the draft for $9,995 in plaintiff 'bank, the court further found:

“That payment thereof was demanded and refused, but thiat later the sum of $6,375.02 was remitted! by said Rice Bros, to the plaintiff hank and placed to the credit of defendant’s account by the plaintiff bank; * * * that the said C. B. Miller and! the plaintiff neglected and! omitted to have the hill of lading for said cattle so shipped to Rice Bros, 'by said C. B. Miller turned over to the hank as security for said sight draft, and1 that the plaintiff ■bank neglected and omitted1 to secure by wire or otherwise an acceptance of said slight draft before the shipment of said cattle although requested by C. B. Miller so to db; that the plaintiff hank permitted) the cattle to he shipped) by said1 C. B. Miller in •his own name without any form of -security whatever for the payment of said eight draft, except that at that time the plaintiff hank held a letter of credit from Rice Bros, in which Bice Bros, agreed' to honor drafts drawn on them by C. B. Miller for the •purchase price of cattle purchased by him and consigned- to Rice Bros.; that upon the dishonor of the sight draft for $9,995 the plaintiff bank first took from C. B. Miller a promissory note, executed by C. B. Miller for the amount of such sight draft; that subsequently this mute was returned by the plaintiff hank to- C. B. Miller, and the amount off said sight draft together with $2.58 protest fees and chargeis was charged ’by tire plaintiff bank to the account of defendant, S. M. Miller, thus1 charging the defendant, S. M. Miller, with the loss of $3,622.56 in slaid transaction; that tine plaintiff blank had no authority from the defendant, S.. M. Miller, to charge these items to his aiooouot.”

We are of the opinion that -these findings of fact are fully sustained by the evidence, and thiat the conclusion off law to the effect thiat plaintiff’s lose on this draft wais caused by its own negligence was! justified.

The judgment and order appealed from, are affirmed.  