ON MOTION FOR REHEARING. Defendant has filed motion for rehearing and plaintiff has filed motion to modify. The modification sought is that instead of reversing the judgment and remanding the cause the order be reversing the judgment and remanding the cause with direction to enter judgment for plaintiff as prayed for in the petition.
The motion for rehearing is directed to the proposition that we reached an erroneous conclusion in the opinion filed. Under the facts presented we believe that our opinion is in accord with sound reason and good banking and is supported by the great weight of authority. There is nothing in this record to show that there was any clearing point at Ontario or Vale or elsewhere through which the check might have been presented with less delay than was the result from the method followed. Neither is there anything in the record tending to show that at the time the Ontario National Bank forwarded the check to its correspondent in Portland that it had any knowledge or information to the effect that the United States National Bank of Vale was in an unsound or bad condition. Rather is the evidence on this question to the contrary. The cashier of the Ontario National Bank testifies that the check, as were all checks received by his bank on banks in Vale, was sent to "the Northwestern National Bank of Portland which was the nearest clearing house that we could use." Also he testified; "When we received the check we did not know that the United States National Bank of Vale was in a failing condition or that it was regarded among the bankers of that community as being unsound financially." Neither did the plaintiff nor defendant have such knowledge or information. At the time the United States National Bank of Vale failed plaintiff had on deposit in said bank "over $3300," and defendant had $8400.
Unless our opinion is in accord with the law then when a bank receives an item upon another bank in the same county, but out of the town or city where its own place of business is, or items upon banks in adjoining or nearby counties, such bank will at its peril handle such item through the constituted agencies that sound banking experience has established. And though there be no clearing point nearby and nothing to indicate that the bank upon which the item is drawn is unsound, yet such item may not be sent through the *Page 76 usual course except at the sender's peril. We do not believe that such is or ought to be the law.
It is quite apparent that no importance was placed on the question of knowledge or information on the part of the National Bank of Ontario that the United States Bank of Vale was in a failing condition when the check was received by the National Bank of Ontario. This point arose during the consideration of the motions presented. It may be that upon a retrial an issue of fact may be made on this question. If so it should be determined. Both plaintiff and defendant are in a sense innocent, but there is nothing here to show that plaintiff or his agent, the Ontario National Bank, was negligent, and unless such is shown plaintiff should prevail.
The motions for rehearing and to modify should both be overruled and it is so ordered. Cox, P.J., and Bailey, J., concur.