There is no bill of exceptions in this case. The plaintiff sued the defendant on a promissory note before a justice of the peace. The defendant filed a counterclaim for a sum in excess of the note. The alleged facts as to the counterclaim are, that in May, 1893, the defendant deposited with the plaintiff bank the sum of $300, which amount the officials of the bank agreed to remit to’ theClarksburgSavings Bank, to be applied in the payment of an overdue note of the defendant’s, which was held by the latter bank; -that the plaintiff failed to transmit the money until August, 1894, and that by reason of the delay the defendant was compelled to pay the Clarksburg Bank additional interest, to wit, the sum of $37.91. Upon a trial in the circuit court the judgment was against the plaintiff on the note and damages to the amount of one cent were assessed in favor of the defendant on the counterclaim. The plaintiff has appealed.
waiver. It is insisted that the judgment is a nullity for the reason that the judgment entry fails to show that a jury was waived. This contention is erroneous. Undoubtedly the plaintiff had the constitutional right to have the issues tried by a jury, but this right like any other it was -competent for it to waive. If in fact, it did not waive it, the circuit court would undoubtedly have arrested the judgment if its attention had been called to the matter *321by the proper motion. As the plaintiff made no such objection, the presumption is that there was in fact such a waiver, and the failure of the judgment entry to show it must be regarded as a clerical omission on the part of the clerk.
The other contention of the plaintiff is that upon the face of the record the judgment of the circuit court on the counterclaim is erroneous for the reason that an agreement on the part of the cashier of the bank to transfer the money of a depositor to another bank is not within the scope of his agency, the argument being that such an undertaking is outside of the legitimate business of the bank. (E. S. 1889, sec. 274.) This view of the statute is entirely too restricted. In the cases relied on by the plaintiff the banks were sought to be held on contracts made by their cashiers concerning the sale of real estate (Burris v. Bank, 70 Mo. App. 675; Winsor v. Bank, 18 Mo. App. 665). In these cases the courts very properly held that such contracts were not in the line of duty of bank cashiers. The case here is entirely different. The plaintiff undertook for a consideration, to transmit a draft for defendant (who was a customer of the bank) to a neighboring bank. Such a transaction is an every day occurrence and is clearly within the legitimate business of a bank. The plaintiff, having failed in its undertaking, must answer for all proximate damages resulting from such failure.
The judgment of the circuit court will be affirmed.
All the judges concur.