dissenting.
Had plaintiff, as a customer of defendant bank, made deposit in the usual manner of the check drawn on the depository bank, I think there would be a presumption that it was accepted conditionally according to the provisions recited on the signature card. On the other hand, had plaintiff taken the check to the bank, asked if the check was good and said he wanted it paid in cash, the payment of the money by the bank would have closed the transaction and the bank would have had no recourse against plaintiff, unless the check was found not genuine or plaintiff found guilty of fraud.
Here we have an unusual situation. The fact that plaintiff presented the check otherwise than in the usual manner of deposit and was paid part of it in cash would be indicative of an independent transaction. The fact that he made deposit of part of it would be indicative of deposit in the usual way. Statements made in connection with the transaction was, I think, a question of fact to be determined by the court from all the evidence. We are bound by that determination. Ann. 15 A.L.R. 709; Fine v. Harney County National Bank, 181 Ore. 411, 170 P. (2d) 365.
Mr. Justice Hays concurs in this dissent.