                                           No. 12511

          I N THE SUPREME COURT O THE STATE O M N A A
                                 F           F OTN

                                             1974



S N RIVER CATTLE CO., I N C . , a
 U
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 ,



MINERS BANK O MONTANA N .A.
                 F                               ,a
Banking C o r p o r a t i o n ,

                                   Defendant and Respondent.



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 o f Record :

     For A p p e l l a n t s :

             C o r e t t e , Smith and Dean, B u t t e , Montana
             Kendrick Smith argued, B u t t e , Montana

     For Respondent :

             Alexander, Kuenning and Miller, G r e a t F a l l s , Montana
             P a u l D. Miller 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 Amici Curiae:

            Wesley Wertz, Helena, Montana
            Turnage and McNeil, Polson, Montana
            Luxan, M u r f i t t and Davis, Helena, Montana



                                                              Submitted:           arch   18, 1974

                                                                 Decided :
                                                                                   @R 1 7 ~ 4
Filed :    fiw?17'lW#.
                   ,.. a ?,
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                               ,
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PER CURIAM:
            This appeal was o r i g i n a l l y heard on November 27, 1973; an opinion
issued January 14, 1974; a rehearing was granted and argued.                         This opinion
replaces t h a t appearing i n 31 St.Rep. 44.
            This -is a case involving three separate p l a i n t i f f s and s i x separate
checks.     The p l a i n t i f f s a r e c a t t l e r a i s e r s and brought t h i s action t o recover
$74,868.02, plus i n t e r e s t which represents the t o t a l of the s i x checks drawn
by Schumacher's Nw Butte Butchering, hereinafter referred t o as Nw Butte,
                 e                                                e
on i t s account a t Miners Bank of Montana, hereinafter referred t o a s Miners.
One check was payable t o Bruce Beck & Son, two t o Louis Skaar & Sons, and
t h r e e t o Sun River Cattle Co., who will be referred t o hereinafter, respect-
ively, a s Beck, Skaar and Sun River individually and a s p l a i n t i f f s c o l l e c t i v e l y .
Each of the checks was accepted by the p l a i n t i f f payees i n payment f o r c a t t l e
sold and delivered t o Nw Butte.
                        e                      A summary of the history of a l l s i x checks
is a s follows:
            The Beck check dated April 28, 1970, was f o r t h e amount of $12,478.63.
This check was sent by Beck's bank t o Miners, stamped "Paid", run through Nw
                                                                            e
Butte's checking account and deducted from the balance on May 11, 1970, (a
Monday).     The check was reversed and added t o the balance on May 13, 1970, and
returned t o Beck's bank f o r i n s u f f i c i e n t funds.      The check was s e n t back t o
Miners, stamped "Paid", run through Nw Butte's checking account, deducted
                                     e
from the balance on May 20, 1970, reversed on May 21 , 1970, and returned t o
Beck's bank f o r i n s u f f i c i e n t funds.   I t was then returned t o Miners "for
collection" June 4, 1970, received by Miners on June 8 , 1970, and retained by
Miners u n t i l July 7 , 1970, when i t was returned t o Beck's bank.
            The f i r s t Skaar check, dated April 14, 1970, was f o r t h e amount of
$11,514.74.       This check was s e n t by Skaar's bank t o Miners, stamped "Paid",
run through New Butte's checking account, deducted from the balance on April
27, 1970, reversed April 28, 1970, and added t o t h e balance and returned t o
Skaar's bank f o r i n s u f f i c i e n t funds on April 28, 1970.          The check was s e n t
back t o Miners, run through Nw Butte's checking account and deducted from
                              e
the balance on May 11 , 1970, reversed and added t o balance May 13, 1970, and
returned t o Skaar's bank f o r i n s u f f i c i e n t funds.      I t was returned by Skaar's
bank "for collection'' on May 15, 1970, received by Miners on May 18, 1970,
and retained by Miners u n t i l July 27, 1970, when i t was returned t o S k a a r ' s
bank.
            The second Skaar check, dated May 4, 1970, was f o r t h e amount of
$12,434.26.      This check was s e n t by Skaar's bank t o Miners, stamped "Paid",
run through New B u t t e ' s checking account, deducted from the balance on May
12, 1970, reversed on May 13, 1970, and added t o the balance and returned t o
Skaar's bank f o r i n s u f f i c i e n t funds.   The check was returned by Skaar's bank
t o Miners " f o r c o l l e c t i o n " , received by Miners on May 20, 1970, and retained
by Miners u n t i l July 27, 1970, when i t was returned t o Skaar's bank.
            The f i r s t Sun River check, dated April 27, 1970, was f o r the amount
of $12,882.57.       This check was deposited in the F i r s t National Bank of Great
F a l l s on April 28, 1970, and s e n t t o Miners.          I t was stamped "Paid May 1 ,
1970", run through Nw B u t t e ' s checking account and deducted May 1 , 1970,
                    e
(a Friday).      The check was reversed and added t o the balance on May 4 , 1970,
(a Monday) and returned t o F i r s t National Bank of Great F a l l s .                 The check
was s e n t back t o Miners "for collection" on May 8 , 1970, received by Miners
on May 11, 1970, and has never been returned.
            The second Sun River check, dated May 4, 1970, i n t h e amount of
$13,114.23, and the t h i r d Sun River check, dated April 1 , 1970, (although
t h e invoice f o r this load of c a t t l e i s dated April 28, 1970) i n t h e amount of
$12,443.59, were both s e n t t o Miners d i r e c t l y "for c o l l e c t i o n " .     The second
check was s e n t on May 6 , 1970, and received by Miners on May 7 , 1970, and the
t h i r d was s e n t on May 12, 1970, and received by Miners May 13, 1970.                     These
checks have never been returned.              None of the checks have been paid.
            In 1962 the original transaction between Miners and New Butte took
place when Miners loaned New Butte some $289,500.                    In 1968 refinancing of
New Butte became necessary in an amount i n excess of Miners' lending capacity.
            Refinancing was carried out w i t h two separate loans.                     One was f o r
$200,000 w i t h Miners having a 30% participation and the remaining 70% spread
among seven sister banks.          The other was f o r $100,000, 90% of which was
guaranteed by the Small Business Administration (hereinafter referred t o a s
SBA). The loans were made t o provide working c a p i t a l , and t o comply w i t h
federal regulations a s t o slaughterhouses            .
            Miners f i l e d financing statements w i t h the county c l e r k of S i l v e r
Bow County and the secretary of s t a t e .          A l i s t of equipment was attached
t o t h e statement f i l e d with the secretary of s t a t e ; no such l i s t was attached
t o the one f i l e d with the county c l e r k and recorder.            N amounts being secured
                                                                          o
a r e shown on the statements but Mr. Pitts, Miners1 president a t the time,
s t a t e d t h a t they were designed t o cover both loans.           Nitness P i t t s t e s t i f i e d
t h a t the l i e n of the $200,000 loan was f i r s t as t o a l l equipment b u t t h a t the
$100,000 loan was f i r s t a s t o the accounts receivable and inventory.
           Miners a l s o took mortgages securing t h e $200,000 loan a s follows:
mortgage on New B u t t e ' s plant and a mortgage from Harold F. Schumacher and
Loretta Schumacher covering thei r home and personal property.                        Securing the
$100,000 loan Miners took a mortgage from New Butte t o Miners covering t h e
plant and equipment and a mortgage from the Schumachers covering t h e i r home
and personal property.
            In each instance the mortgage securing the $200,000 loan was f i l e d
first.     None of these mortgages has been foreclosed.
           Miners a l s o f i l e d a s e c u r i t y agreement w i t h the r e g i s t r a r of motor
vehicles securing the $200,000 loan and a l s o took an assignment on Schumacherls
l i f e insurance a s security f o r the $200,000 loan.             The policies were cashed
f o r the cash value.
            In December of 1969, Nw Butte closed down i t s operation f o r financial
                                  e
reasons.     Operations were resumed i n January 1970. A t this time a financing
firm, Doug1 a s Guardian, with i t s program of warehousing r e c e i p t s and accounts
receivable financing became involved i n cooperation w i t h Miners and New Butte.
Advances by Miners under the warehouse recei pts plan approximated $390,000.
The amounts advanced by Miners under the accounts receivable financing exceeded
$400,000.       The warehouse r e c e i p t s program s t a r t e d January 15, 1970, and
ended May 22, 1970; the accounts receivable financing covered a period from
January 30, 1970, t o May 11, 1970.
             During the f i r s t seven months of 1970, t h e New Butte checking
account was overdrawn i n amounts ranging from nominal t o as much a s $55,000
f o r a l l but 87 of those days.
             A of May 18, 1970, the $700,000 loan was current in payments.
              s                                                                                       All
payments on t h e $200,000 were made currently through May 28, 1970.                        On June
2, 1970, the SBA took over the a s s e t s of t h e business.               Neither loan was i n
d e f a u l t a t t h a t time.   On May 29 and June 1 , 1970, Miners' president, P i t t s ,
debited the Mw Butte account f o r $12,000 and $9,000 and credited those amounts
             e
t o t h e $100,000 S A loan.
                    B
             P i t t s admitted t h a t he was looking c a r e f u l l y t o the account on May
29, 1970, so t h a t he could put i n the withdrawal s l i p f o r $12,000 and be sure
t h a t Miners got ahead of anybody e l s e .         He s t a t e d t h a t he personally handled
t h e withdrawal.
             A t o t h e $9,000 withdrawal, P i t t s t e s t i f i e d t h a t he kept s t r i c t
              s
watch of the account and when t h e r e was enough deposited, he personally p u t
in a withdrawal s l i p .         On June 18, 1970, Miners credited the $200,000 loan
w i t h $4,602, which represented 30% of the t o t a l of $15,342 a s the r e s u l t of
a s a l e of equipment by New Butte.            The proceeds were not deposited i n Nw
                                                                                     e
B u t t e ' s account but were applied d i r e c t l y t o the $200,000 loan and t h a t
c r e d i t was enough t o discharge i n advance the principal and i n t e r e s t f o r s i x
months.      There was no foreclosure of the s e c u r i t y i n t e r e s t s nor were the
proceeds of the s a l e s placed i n t o New Butte's account.
             The bank in this instance knew of the condition of the account of
New Butte, i t had intimate knowledge of the transactions, i t was the "on the
ground" representative of the s i s t e r banks who shared in the loan and i t had
more than t h e usual normal i n t e r e s t i n t h e a c t i v i t i e s of Nw Butte.
                                                                               e
             P l a i n t i f f s brought this action against New Butte and Miners t o re-
cover the amounts of the checks plus i n t e r e s t and damages.                After a t r i a l
without a jury in the second judicial d i s t r i c t , Judge James D . Freebourn
presiding, found for the p l a i n t i f f s against Nw Butte and found against the
                                                      e
p l a i n t i f f s and f o r defendant Miners.    P l a i n t i f f s appeal t h a t part of the
judgment which exculpated Miners.
            P l a i n t i f f s present f i v e issues f o r review, which are summarized as
follows:      (1) Whether Miners i s l i a b l e f o r holding the Beck check and the
f i r s t Skaar check past the midnight deadline provided f o r in section 87A-4-302,
R.C.M.   1947, and ( 2 ) whether Miners i s l i a b l e f o r holding a l l s i x of the
checks past the midnight deadline as provided for in the s t a t u t e .                  Plaintiffs'
remaining issues involve the question of good f a i t h , which the d i s t r i c t court
specifically found was exercised by Miners in i t s dealings with p l a i n t i f f s .
The question of good f a i t h will be considered in connection with p l a i n t i f f s '
f i r s t two issues.
            This case involves sections of the Uniform Commercial Code enacted
in T i t l e 87A, R.C.M.       1947. The issues presented by p l a i n t i f f s are of f i r s t
impression t o t h i s Court, and there are few cases in other jurisdictions
which have construed the e f f e c t of the sections of the Uniform Commercial
Code which are determinative of the issues presented f o r review.                                  .- T
                                                                                                     .-
                                                                                                           (:
                                                                                                $',,iicilh(
            P l a i n t i f f s ' f i r s t and second issues r a i s e questions concerning-ectio
4 of the Uniform Commercial Code.               (Hereafter, references to the Uniform Com-
mercial Code will be made by the section number only; the t i t l e number will be
omitted). Generally p l a i n t i f f s argue that Miners i s l i a b l e for the face amount
of the checks f o r not complying with what i s commonly referred to as the "mid-
night deadline" rule.            Defendant argues t h a t with respect to the f i r s t issue
section 4-108 i s an exception to section 4-302 and with respect to the second
issue section 4-103 i s an exception t o section 4-302 and under these sections
Miners i s not l i a b l e .     I n i t i a l l y , w will generally discuss the construction
                                                      e
of section 4-302, which provides:
            "In the absence of a valid defense such as breach of a
            presentment warranty (subsection (1) of section 87A-
            4-207), settlement effected or the l i k e , i f an item i s
            presented on and received by a payor bank the bank i s
            accountabl e for the amount of
             "(a) a demand item other than a documentary d r a f t whether
             properly payable o r not i f the bank, in any case where
             i t i s not a l s o the depositary bank, r e t a i n s the item
             beyond midnight of t h e banking day of r e c e i p t without
             s e t t l i n g f o r i t o r , regardless of whether i t i s a l s o
             t h e depositary bank, does not pay o r return the item
             o r send notice of dishonor u n t i l a f t e r i t s midnight
             deadline; o r * * *."
             The 'hidnight dead1 i n e u i s midnight of t h e banking day following t h e
                                                                            ,.--<


                                                                                    i e '
day of the r e c e i p t of t h e item by the payor bank.         Section 4-104'(h).        A
payor bank i s a bank by which an item i s payable a s drawn o r accepted.
Section 4-105(b).  There i s no question b u t t h a t Miners i s t h e payor bank.
                                                                .'* )
The checks involved herein a r e demand items. Section 4-10P(g) and section
3-104(1) and ( 2 ) .
             Section 4-302 was construed in the case of Rock Island Auction Sales
v . Empire Packing Co., 32 I11.2d 269, 204 N.E.2d 721, 18 ALR.3d 1'368, where
the I l l i n o i s court held t h a t the word "accountable" in the s t a t u t e i s synonymous
with "1 i a b l e " .   W agree.
                         e
             Essentially, section 4-302 says t h a t i n the absence of a valid de-
fense, a demand item, retained beyond thellnidnight deadlineUby the payor bank
without e i t h e r paying, returning, o r giving notice of dishonor renders the
payor bank l i a b l e t o the payee f o r the face amount of the item.
             In addition, there i s a fundamental requirement of good f a i t h under
the s p e c i f i c provision of section 1-201(19), which reads as follows:
             "'Good f a i t h ' means honesty in f a c t i n the conduct o r
             transaction concerned.
             Furthermore, 1-203 provides:
             "Every contract o r duty w i t h i n this a c t imposes an obligation
             of good f a i t h i n i t s performance o r enforcement."
             P l a i n t i f f s ' f i r s t issue concerns the Beck check dated April 28,
1970, and the f i r s t Skaar check dated April 14, 1970.              These checks were
submitted a s cash items t o Miners on May 11, 1970, and were not returned
u n t i l May 13, 1970.     P l a i n t i f f s contend t h a t because of the delay t h a t Miners
violated t h e ('midnight deadline" r u l e .       Facts not heretofore s e t f o r t h
relevant t o t h i s issue and undisputed a r e a s follows:
             The Computer Corporation of Montana, a data processing company,
i s a wholly owned subsidiary of Bancorporation of Montana which processed
checks f o r eleven banks i n the Bancorporation chain, including Miners.                 Items
t o be processed f o r Miners a r e sent t o Computer Corporation i n Great F a l l s
by armored c a r between 5:00 p.m. and 6:00 p.m. of the day of r e c e i p t and a r e
usually back a t Miners by 8:00 a.m. the following morning.                   The checks norm-
a l l y reach Great F a l l s about 10:30 p.m.      On May 11, 1970, the day on which
Miners received the checks under discussion, the armored car broke down and
did not reach Computer Corporation u n t i l 1:30 a.m. the morning of May 12,
1970.   Ordinarily the work on Miners' checks would have been processed by
11:30 p.m.; the checks would have s t a r t e d back t o Butte by armored c a r a t
4:00 a.m. and have reached Miners a t 7:00 a.m.
          On the morning of May 12, 1970, the computer malfunctioned, and
t h e checks which would have normally been returned t o Miners on the morning
of May 12, 1970, did not a r r i v e u n t i l 2:30 p.m. t h a t afternoon.
           Ken Mahle, vice-president of Miners a t the time of the t r i a l ,
outlined t h e procedures which were followed each day a f t e r the r e c e i p t of
the checks from the Computer Center.            H could not, however, t e s t i f y a s t o
                                                 e
what occurred on May 12, 1970.          There was no testimony a s t o what a c t u a l l y
happened on the day a f t e r the checks were received by Miners.
          Miners contend t h a t i t i s t h i s type of s i t u a t i o n which section 4-108(2)
was intended t o cover.       Section 4-1 08(2) provides:
          "Delay by a c o l l e c t i n g bank o r payor bank beyond time
          l i m i t s prescribed o r permitted by t h i s a c t o r by
          instructions i s excused i f caused by interruption of
          communication f a c i l i t i e s , suspension of payments by
          another bank, war, emergency conditions or other c i r -
          cumstances beyond the control of the bank provided i t
          exercises such di 1igence a s the circumstances require. "
The Official Code Comment on t h i s point s t a t e s :
          "4. Subsection ( 2 ) i s another escape clause from time
          l i m i t s . This clause operates not only with respect t o
          time l i m i t s imposed by the a r t i c l e i t s e l f b u t a l s o time
          l i m i t s imposed by special i n s t r u c t i o n s , by agreement
          o r by Federal Reserve regulations o r operating l e t t e r s ,
          clearing house r u l e s o r t h e l i k e . The l a t t e r time 1imits
          a r e 'permitted' by the Code. This clause operates,
          however, only i n the types of s i t u a t i o n specified.
          Examples of these s i t u a t i o n s include bl izzards , floods,
            or hurricanes, and other 'Act of God' events or con-
            d i t i o n s , and wrecks or disasters, interfering w i t h
            mails; suspension of payments by another bank; abnormal
            operating conditions such as substantial increased volume
            or substantial shortase of ~ersonneldurins war or
                                           ."
            emergency situations When' delay i s sought t o be excused
            under t h i s subsection the bank must 'exercise such d i l i -
            gence as the circumstances require' and i t has the burden
            of proof." (Emphasis supplied.) 3 Anderson, Uniform
            Commercial Code 191        .
            The effect of section 4-108(2) i s t o excuse a payor bank from the
standard of s t r i c t accountability of section 4-302 and t o hold i t t o a stan-
dard of "di 1igence as the ci rcumstances require".                  Under section 4-1 08(2)
there must be a showing t h a t the circumstances were beyond the control of
the bank and that the bank exercised such diligence as the circumstances
require.     As the Official Code Comment s t a t e s , the burden i s on the bank.
            The d i s t r i c t court found that Miners' f a i l u r e t o pay o r return the
checks or t o give notice of dishonor within the prescribed time was due t o
circumstances bqond i t s control.              The d i s t r i c t court also found t h a t Miners
exercised the required di 1igence and that no evidence was introduced showing
that Miners failed t o exercise due care.
            The evidence as t o the events in question i s undisputed.                   This Court
i n In r e Wadsworth's Estate, 92 Mont. 135, 150, 11 P.2d 788 stated:
            " * * * B u t where, as here, there i s no dispute as t o
            the f a c t s , t h i s court i s in as favorable a position in
            applying the law as the d i s t r i c t court, and in such
            instances will not hesitate t o do so. (Citing author-
            i t y . ) And a judgment or order unsupported by the evi-
            dence will be reversed on appeal to t h i s court. (Citing
            authority.)"
            The only evidence produced by Miners was what the ordinary operating
procedures were.
            As w have heretofore stated, Miners had more than the usual normal
                e
i n t e r e s t in the a c t i v i t i e s of Nw Butte.
                                               e          I t necessarily follows t h a t under
the circumstances of t h i s case that the degree of diligence required under
4-108(2) i s greater than under normal circumstances.
            Miners argues t h a t the testimony of Mahle as t o normal operating
procedures constitutes a showing of due diligence.                    While there may be in-
stances where a showing as t o what occurs on a normal operating day may
c o n s t i t u t e a showing of diligence under circumstances where the delay i s
s i m i l a r a s t o the one i n the i n s t a n t case, t h i s case is n o t one of those
instances.       Miners' i n t e r e s t i n New Butte was more than usual, and a show-
ing of diligence by Miners required more than testimony a s t o what the
normal operating procedures were.                  Miners' burden under the circumstances
of this case i s g r e a t e r f o r t h e reason t h a t i t s r e l a t i o n s h i p and i n t e r e s t
i n New Butte was s i g n i f i c a n t l y more than ordinary.             Miners did not meet
i t s burden a s imposed by section 4-108(2).
             Under the exception of section 4-108(2) the bank must show:
( 1 ) A cause f o r the delay; (2) t h a t the cause was beyond the control of t h e
bank; and ( 3 ) t h a t under the circumstances the bank exercised such diligence
a s required.       In the absence of any one of these showings, the excuse f o r
the delay will not apply, and the bank will be held l i a b l e under the provisions
of section 4-302.          Since Miners d i d not meet i t s burden, i t i s therefore l i a b l e
f o r the face amount of the Beck check and the f i r s t Skaar check under the
s t r i c t accountabil i t y r u l e of section 4-302.
             Having i l l u s t r a t e d t h a t Miners had more than a normal i n t e r e s t i n
the a c t i v i t i e s of Nw Butte and t h a t the exception of 4-108(2) i s not appli-
                            e
cable herein, we now consider p l a i n t i f f ' s second issue which concerns a l l s i x
checks.      For the reason t h a t we have found in considering p l a i n t i f f ' s issue
No. 1 t h a t 1 i a b i l i t y attached a s t o the Beck check and the f i r s t Skaar check
a s of May 13, 1970, under section 4-302, our consideration of the second issue
will be w i t h reference t o the remaining four checks.                       The second Skaar check
and the f i r s t Sun River check were ultimately s e n t t o Miners " f o r c o l l e c t i o n " .
The second and t h i r d Sun River checks were s e n t d i r e c t l y t o Miners f o r collec-
tion.     The second Skaar check was received by Miners on May 20, 1970, and re-
tained u n t i l July 27, 1970, a period of more than two months.                           The three Sun
River checks were never returned by Miners.
             P l a i n t i f f s contend t h a t Miners, the payor bank, may not become a
c o l l e c t i n g bank and therefore, cannot take a check f o r collection and hold
t h e same beyond the regular midnight deadline.                      P l a i n t i f f s r e l y upon the
following cases:
             In Rock Island the s e l l e r of c a t t l e received the buyer's $14,706.90
check on the same day.            On t h a t day the s e l l e r deposited the check in s e l l e r ' s
bank and i t was received by the payor bank on Thursday, three days l a t e r .
The buyer's account in the payor bank was inadequate t o pay the check, and
the payor bank, relying on the buyer's assurances t h a t additional funds would
be deposited, held the check until the following Tuesday, when i t marked the
check "not sufficient funds", placed i t in the mail t o a Federal Reserve Bank
and sent notice of dishonor by telegram t o the Federal Reserve Bank.                       The
court held the payor bank 1 iable f o r the amount of the i tem under section 4-302.
            Section 4-302 was also involved in the case of Farmers Coop. Live-
stock M k t . v. Second Nat. Bank, 427 S.W.2d 247 (Ky. 1968). The buyer's alleged
agent signed a d r a f t in the amount of $7,687.01 payable t o the s e l l e r .              The
instrument was drawn on the defendant bank and contained the notation "'To (be)
Charged to Acct. of Robert Martin"'.                   I t was deposited with Northwestern Bank
and sent by Northwestern d i r e c t to defendant bank on October 1 , with an accom-
panying l e t t e r .    The l e t t e r , among other things, stated:
             "'We enclose f o r collection        * * *'
             "   'Wire non-payment of i tems $1,000.00 o r over. '
             "   'Please send us your d r a f t . '
            "'Please wire i f unpaid upon a r r i v a l , b u t hold f o r
            payment with advice to us. * * *"I

The instrument was received by defendant bank on October 4 , and although
there were s u f f i c i e n t funds in Martin's account t o pay the check, defendant
bank had not been authorized by Martin to make payment, so no charge was
made to his account.           No wire was sent to Northwestern as Northwestern had
requested.         On October 6 , Northwestern called the defendant bank and "'was told
t h a t Martin had not come into the bank to authorize payment of the instrument
in question.       'I'   I t was undisputed t h a t the defendant bank had f a i l e d t o take
action before the "midnight dead1 inel'.
            There was a dispute as t o whether the instrument was a "check" or a
"draft".         The Court said t h a t t h i s was an immaterial distinction and t h a t the
important question was whether the instrument was a demand item referred t o
                                              -   11   -
in section 4-302(a).       The Court quoted the definition of an "i tem", and
said a demand item would obviously be one on demand, and held the instru-
ment i n t h i s case was a demand item.    The Court also held t h a t the de-
fendant bank was clearly the "payor" bank and clearly l i a b l e f o r the amount
of the item.
            The defendant bank contended that i t was a collecting bank because
the l e t t e r accompanying the d r a f t contained the words, "'We enclose f o r
collection    **   *I1', and the defendant bank treated the item a s a col lection
item.     In t h i s regard, the Court on page 250 said:
            " * * * The use of the term 'collection' in the l e t t e r
            certainly cannot be said t o have destroyed the statutory
            scheme governing the collection process. The l e t t e r also
            said 'Please wire i f unpaid upon arrival I . This d r a f t was
            presented f o r payment. (Had appel l ee wired as instructed,
            i t would have discharged i t s duty as the payor bank and
            subsequent action t o s e t t l e t h i s account would have been
                                                .
            governed by other considerations ) With respect to how
            appellee treated t h i s item, w can only say that i t took
                                                e
            the risk of loss by f a i l u r e to comply with the law. * * *"

            Miners asserts several reasons why i t i s not l i a b l e under section
4-302.    The f i r s t of these i s that section 3-511 (4) excuses notice of dis-
honor where a check has been presented t o the bank and payment refused a t
l e a s t once before.   Miners argues t h a t the "midnight deadline" rule does not
apply and re1 i e s on Leaderbrand v . Central State Bank of Wichita, 202 Kan.
450, 450 P.2d 1. Section 3-511 (4) provides:
            "Where a d r a f t has been dishonored by nonacceptance
            a l a t e r presentment f o r payment and any notice of dis-
            honor and protest f o r nonpayment are excused unless i n
            the meantime the instrument has been accepted."
            The Kansas court in Leaderbrand held that under section 3-511, once
notice of dishonor had been given, an additional notice of dishonor was not
required.     In Wiley v . Peoples Bank and Trust Company, 438 F.2d 513, the court
rejected Leaderbrand and held section 3-511(4) inapplicable f o r the reason
t h a t "acceptance appl ies only t o time items.    I t has nothing t o do with demand
items."     Likewise, we hold t h a t section 3-511 (_4) i s inapplicable t o the checks
under consideration herein, f o r section 3-51 l ( 4 ) does not apply t o demand items.
            Another reason contended by Miners takes into consideration the
practice of submitting checks "for collection".         I t i s Miners' position t h a t
any obligation i t may have had t o observe the midnight deadline rule was
negated under section 4-103 by specific agreement between the parties and
by a general custom and practice within the banking industry f o r the handling
of checks sent for collection.        Section 4-103 provides in part:
          "Variation by aqreement--measure of damages--certai n
          action constituting ordinary care, [I) The e f f e c t of
          the provisions of t h i s chapter may be varied by agree-
          ment except t h a t no agreement can disclaim a bank's
          responsibility f o r i t s own lack of good f a i t h or f a i l -
          ure to exercise ordinary care or can limit the measure
          of damages f o r such lack or f a i l u r e ; b u t the parties
          may by agreement determine the standards by which such
          responsibility i s t o be measured i f such standards are
          not manifestly unreasonable.
          " ( 2 ) Federal Reserve regulations and operating l e t t e r s ,
          clearinghouse rules, and the l i k e , have the e f f e c t of
          agreements under subsection (1 ), whether or not spec-
          i f i c a l l y assented t o by a l l parties interested in items
          hand1 ed.
          "(3) Action or nonaction approved by t h i s chapter or
          pursuant t o Federal Reserve regulations or operating
          l e t t e r s constitute the exercise of ordinary care and,
          in the absence of special instructions, action or
          nonaction consistent with clearinghouse rules and the
          1ike or with a general banking usage not disapproved by
          t h i s chapter, prima facie constitutes the exercise of
          ordinary care. I'
          I t i s p l a i n t i f f s ' position that since the checks here are demand
items any agreement t o vary the terms of section 4-302 i s d i r e c t l y contrary
to the express terms of the instruments.          While section 4-302 holds a payor
bank s t r i c t l y l i a b l e , section 4-103 i s clearly designed to make an exception
t o section 4-302 by agreement between the parties.
          As the Official Code Comment s t a t e s :
          " * * * Section 4-103 s t a t e s the specific rules for variation
          of Article 4 by agreement and also certain standards of ordi-
          nary care. In view of the technical complexity of the f i e l d
          of bank collections, the enormous number of items handled by
          banks, the certainty that there will be variations from the
          normal in each day's work in each bank, the certainty of
          changing conditions and the possi bi 1i t y of developing im-
          proved methods of collection to speed the process, i t would
          be unwise t o freeze present methods of operation by mandatory
          statutory rules. This section, therefore, permits within
          wide limits variation of provisions of the Article by
          agreement.'' 3 Anderson, Uniform Commercial Code 165.
          The question then becomes whether under the circumstances of the
instant case there was an agreement between the parties excepting Miners from
t h e s t r i c t l i a b i l i t y r u l e of 4-302.
               The d i s t r i c t court found t h a t a prior course of dealing between
p l a i n t i f f s and Miners shows t h e existence of an agreement.          The d e f i n i t i o n
of an agreement a s used herein is found i n section 1-201(3) where i t s t a t e s :
               "'Agreement' means the bargain of the p a r t i e s i n f a c t
               a s found i n t h e i r language or by imp1 ication from other
               circumstances including course of dealing o r usage of
               trade or course of performance a s provided in t h i s a c t
               (sections 87~-1-205'and 87~-2-208): Whether an agree-
               ment has legal consequences is determined by the pro-
               visions of t h i s a c t , i f applicable; otherwise by the
               law of contracts (section 87A-1-103)." (Emphasis
               suppl ied. )
Section 1-205(1) provides as t o course of dealing:
               "A course of dealing i s a sequence of previous conduct
               between the p a r t i e s t o a p a r t i c u l a r transaction which
               is f a i r l y t o be regarded a s establishing a comon basis
               of understanding f o r interpreting t h e i r expressions and
               other conduct. "

               Miners has attempted t o establish a course of dealing a s t o plain-
t i f f Sun River and p l a i n t i f f Skaar because each had one check sent f o r collec-
tion paid from the Nw Butte account a f t e r being held past the'hidnight dead-
                    e
line." The holding and paying of one check i s not s u f f i c i e n t t o form "a
sequence of previous conduct" which is necessary t o e s t a b l i s h a course of
deal ing   .
               In addition, the Uniform Commercial Code does not contemplate that
the course of dealing may c o n s t i t u t e the e n t i r e agreement, b u t merely gives
meaning t o o r supplements the express terms of an e x i s t i n g agreement.                   See
1 Anderson, Uniform Commercial Code 175, 176. Miners could show b u t one
previous transaction--clearly i n s u f f i c i e n t t o e s t a b l i s h a course of dealing.
               Miners also claims t h a t Sun River used i t s banker, Malcolm Adams
of the F i r s t National Bank of Great F a l l s , as i t s agent and t h a t because Adams
understood t h a t the check would be held by Miners t h a t t h i s constituted an
agreement.        This asserted agreement between Miners and Sun River i s ineffec-
t i v e i n view of the f a c t of Miners' obvious lack of f a i r n e s s and t h e standard
imposed upon i t by i t s own more than normal re1 ationship with New Butte.
Contrary t o the d i s t r i c t c o u r t ' s finding of good f a i t h , i t i s t h i s Court's
view t h a t Miners did not a c t in compliance with f a i r dealings contemplated
by the Uniform Commercial Code.
           W present t h i s question;
           e                                  How effective o r reliable may an agree-
ment be, assuming there i s one, when the bank's president, himself, i s looking
closely t o the account and withdraws money therefrom f o r purposes of applying
the money t o a loan which i s not in default? I t i s true t h a t a bank may have
the right of setoff or may pay checks in any order that i t chooses (section
4-303) or a secured party may upon default take possession of collateral with-
out judicial process and dispose of i t in any commercially reasonable fashion
(sections 9-503 and 9-504).          Under the f a c t s here, however, Miners' ~ n i q u e
position with relation t o Nw Butte establishes a standard of care greater
                            e
than under normal situations, and f o r any agreement to come within the excep-
tion in t h i s case requires more than what Adams may have understood.                   In addi-
t i o n , Miners cannot shield i t s e l f by asserting t h a t the alleged agreement i s
an exception in l i g h t of i t s own lack of fairness.
           While Miners stood in an advantageous position with respect to i t s
own i n t e r e s t s , these p l a i n t i f f s stood with no recourse whatsoever a f t e r having
provided essential inventory, namely c a t t l e , f o r the operations of Nw Butte.
                                                                            e
           In i t s argument Miners also claims that oral notice of dishonor was
given to p l a i n t i f f Skaar with respect to the check under consideration.              Whereas,
under sections 4-104(3) and 3-508, oral notice of dishonor may be sufficient
t o meet the requirements of section 4-302, the circumstances here required more
than oral notice.       In one conversation that Skaar had with P i t t s on My 11,
                                                                              a
1970, Pitts indicated t h a t the checks would clear because things were looking
better.    P i t t s did indicate, however, that i t was going to take time.               In view
of what subsequently happened, any notice given t o Skaar o r purported agreement
between Miners and Skaar under the f a c t s here are not sufficient t o release
Miners from the s t r i c t l i a b i l i t y rule of 4-302.
           Defendant's final contention i s that s t r i c t compliance with section
4-302 i s also varied by custom and practice.              The d i s t r i c t court found that the
establ ished custom and practice followed by the banking industry in Montana in
handling checks "for collection'' i n the absence of special instructions
and writing i s t o hold the check f o r an a r b i t r a r y length of time.
            W have heretofore established t h a t there was no agreement between
             e
the p a r t i e s which varied the provisions of section 4-302.          In the absence
of an agreement the s t r i c t l i a b i l i t y r u l e of section 4-302 applies.   Custom
and practice i s relevant under section 4-103C31, i f a t a l l , only w i t h res-
pect t o the establishment of what standard c o n s t i t u t e s ordinary care.       The
standard of care imposed upon Miners in the i n s t a n t case was more than ordi-
nary, and therefore, custom and practice a r e not relevant.
            Clearly, the four checks under consideration herein a r e subject t o
the r u l e of section 4-302.     Miners cannot now claim t h a t the s t a t u t e i s varied
e i t h e r by agreement as provided i n 4-103 o r by custom and practice, p a r t i c u l a r l y
where Miners has assumed a position i n r e l a t i o n t o i t s customer, Nw Butte,
                                                                             e
which imposes a greater standard of care and responsibility than under normal
situations.     Miners cannot prevail in i t s argument when i t has demonstrated a
disregard f o r good f a i t h deal i ngs contemplated by the Uniform Commerci a1 Code.
            For the foregoing reasons, the judgment of the d i s t r i c t court i s
reversed.
