SUN RIVER CATTLE v MINERS BANK

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No, 12511 I N T E SUPREME COURT O THE STATE O MONTANA H F F 1974 O PN S N RIVER CATTLE C M A Y e t a 1. , U P l a i n t i f f s and A p p e l l a n t s , -vs MINERS - BANK O MONTANA e t a l , F , Defendants and Respondents. Appeal from: D i s t r i c t Court o f t h e Second J u d i c i a l D i s t r i c t , Honorable James D. Freebourn, Judge p r e s i d i n g . Counsel of Record: For Appellants : C o r e t t e , Smith and Dean, B u t t e , Montana Kendrick Smith argued and Gerald R. A l l e n and Sam Chase appeared, B u t t e , Montana F o r Respondents: Alexander, Kuenning and M i l l e r , Great F a l l s , Montana Edward C , Alexander argued, Great F a l l s , Montana Henningsen, P u r c e l l and Genzberger, B u t t e , Montana For Amicus C u r i a e : Wesley Wertz, Helena, Montana Turnage and McNeil, Polson, Montana Luxan, M u r f i t t and Davis, Helena, Montana Submitted : Decided : Filed : J ~ 2L3 1974 June 13, 1974 PER CURIAM: A This matter comes on a motion t o c o r r e c t a r e m i t t i t u r . f i n a l opinion, per curiam, was issued i n Sun River C a t t l e Co., Inc., a c o r p o r a t i o n ; Louis Skaar & Sons; and Bruce E. Beck & Sons, P l a i n t i f f s and a p p e l l a n t s , v. Miners Bank of Montana, N.A., Corporation, Defendant and R.espondent, on A p r i l 1 7 , 1974. a Banking Petition f o r r e h e a r i n g was denied and t h e order denying t h e rehearing t o g e t h e r with a copy of t h e opinion was issued a s t h e r e m i t t i t u r and s e n t t o t h e c l e r k of c o u r t of S i l v e r B w County. o The r e m i t t i t u r reversed t h e judgment and i n e f f e c t d i r e c t e d judgment t o be entered f o r t h e amounts of t h e checks involved. opinion d i d n o t comply with Rule 31, M.R.App.Civ.P., that The "* * the mandate s h a l l contain i n s t r u c t i o n s with r e s p e c t t o allowance of interest." Now, p l a i n t i f f s seek c o r r e c t i o n o r c l a r i f i c a t i o n on interest. P l a i n t i f f s ' p o s i t i o n i s t h a t i n t e r e s t runs on each of t h e s i x checks from t h e second day following f i n a l r e c e i p t of each of t h e s i x checks by t h e bank. Defendant's p o s i t i o n i s : f i r s t , t h i s Court has l o s t j u r i s d i c - t i o n over t h e r e m i t t i t u r ; second, s i n c e t h e opinion merely reversed t h e judgment a new t r i a l i s c a l l e d f o r , r a t h e r than an e n t r y of judg- ment f o r p l a i n t i f f s ; t h i r d , t h a t i n any event, a d d i t i o n a l evidence i s c a l l e d f o r before t h e t r i a l c o u r t t o e s t a b l i s h a measure of damages because, even i f t h e r e was l i a b i l i t y under t h e r u l e of s e c t i o n 87A-4-302, R.C.M. 1947, t h e measure of damages would be t h a t prescribed by s e c t i o n 878-4-103(5), R.C.M. 1947, t h i s argument i s based on a t o r t r u l e where any l o s s t r i g g e r e d by "bad f a i t h " should c a l l f o r t h e amount of t h e item reduced by an amount which could not have been r e a l i z e d by t h e use of ordinary care,and t h e damages s u f f e r e d a s a proximate consequence of t h e bad f a i t h ; and f o u r t h , t h a t s i n c e t h e a c t i o n sounds i n t h e n a t u r e of a t o r t based on a v i o l a t i o n of s t a t u t o r y o b l i g a t i o n , t h e o b l i g a t i o n t o pay does n o t a r i s e u n t i l a judgment i s entered determining l i a b i l i t y and f i x i n g t h e amount. We shall narrow the issue by disposing of defendant's first two contentions. This Court clearly has jurisdiction to correct oversights or omissions. See State ex rel. Kruletz v. District Court, 110 Mont. 36, 39, 98 P.2d 883, as to district courts. Moreover, here, defendant goes on to seek clarification and direction, so really does not seriously make its contention. Defendant states that a new trial follows a simple reversal . of a judgment and cites Steen v Hendy, 107 Cal. 49, 40 P. 386. Steen was not followed by this Court in State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 211, 105 P. 721. In La France it was stated that this Court "should exercise its undoubted authority to take the initiative in disposing of litigation as expeditiously as possible Civ.P. ** *I .f Rule 31, M.R.App. ,, provides: * * "fc * * If a judgment is * reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest. I I What has happened here is that the Court simply overlooked and omitted directions as contemplated by the rules. This leads us . that is, to direct the disposition directly to the main issue: of the case, If that issue be determined that a money judgment should be entered for the amount of the six checks on the basis argued by plaintiffs, further evidence on damages would not be proper. Clearly, we held the defendant bank became liable on each of the six checks because of its statutory duty to pay, return, or give notice of dishonor by the "midnight deadline", being the next day after receipt. We held, as the discussion in the opinion re- flects, that the Bank failed to carry its burden of proof on its defense. It is at this point that the bank urges we held in tort, as in fraud or bad faith; and thus the rule of Resner v. Northern Pacific Railway, Mont . , 520 P.2d 655, 31 St. Rep. 268, applies in that the tort claim does not bear interest until the amount of damages is determined by judgment. The bank's p o s i t i o n i s a s t r a i n e d one. The opinion r e f l e c t s t h e holding t o be t h a t t h e s i x checks were payable by v i r t u e of s e c t i o n 878-4-302, R.C.M. 1947. The o b l i g a t i o n t o pay a r i s e s on a n e g o t i a b l e instrument f o r a s p e c i f i c , d e f i n i t e amount of money 1947 making s e c t i o n 17-204, R.c.M./, a p p l i c a b l e . I n Mitchell v. Banking Corp. of Montana, 94 Mont. 165, 177, 22 P.2d 175, t h i s Court held t h a t a bank's c r e d i t o r s were e n t i t l e d t o i n t e r e s t from t h e d a t e of t h e complaint f o r t h e e n t i r e amount due from a stockholder on a s t a t u t o r y l i a b i l i t y of t h e stockholder t o t h e e x t e n t of par value of t h e s t o c k , and s t a t e d : "* * * The i n t e r e s t comes i n t h e n a t u r e of a penalty f o r delay i n t h e prompt payment of t h e s t a t u t o r y l i a b i l i t y on demand. " See W. J. Lake & Co. v. Montana H.P. Co., 109 Mont, 434, 97 P.2d Our holding i s based upon c o n t r a c t law a s t o n e g o t i a b l e i n s t r u ments and s t a t u t o r y d u t i e s thereunder. The evidence concerning bad f a i t h and fraud only went t o t h e weight of t h e evidence and t h e burden of proof. Accordingly, i t i s ordered: That t h e r e m i t t i t u r provide f o r i n t e r e s t on each of the s i x checks f o r t h e f a c e amount of t h e checks, together with i n t e r e s t a t s i x per c e n t per annum from t h e second day a f t e r f i n a l r e c e i p t of each check and f o r c o s t s herein.

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