Citizens & Southern Bank v. Ponsell, 33 Ga. App. 193

Citizens & Southern Bank v. Ponsell

33 Ga. App. 193 | Ga. Ct. App. | 1924

Lead Opinion

Per Curiam.

The petition of Mrs. D. B. Ponsell against the Citizens and Southern Bank is substantially as follows: On May 7, 1920, Mrs. Ponsell deposited $1500 to her credit in the defendant bank. From May 8 to May 26, 1920, the bank paid out her entire deposit on forged checks. She received no notice of the status of her account, and knew nothing of it, “until, by the merest accident,” in or about the latter part of August or the first part of September, 1920, she discovered for the first time, “while looking through some old papers,” the statement of her account with the bank, together with the checks. “To her counsel only did she *194make known the fact of such forged checks against her said account some two or three months ago.” (The petition was filed September 26, 1923.) The reason she did not immediately notify the bank of such forgeries after the discovery of said checks in the latter part of August or the first part of September, 1920, was that her husband, who had forged the checks to pay his individual indebtedness, was continuously drunk, and had repeatedly threatened her life and the lives of her children, and she was afraid that he would carry out his threats if she exposed his forgeries. Only after the husband had abandoned her did she think of making demand for her money. On September 6, 1923, she personally demanded her said deposit, and the defendant refused payment. Plaintiff never cheeked against her account, nor did she ever authorize any one else to sign her name to any cheek, draft, or order for the payment of money out of her account. JETeld: The demurrer to the petition was properly overruled.

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur. Luke, J., dissents.

Dissenting Opinion

Luke, J.,

dissenting. It appearing from the petition that the depositor failed to notify the bank for approximately two years and nine months after she knew that the deposit sued for had been drawn out by her husband on checks 'forged by him, her long silence, in my opinion, estopped her from recovering the amount of such deposit from the bank, and the defendant’s general demurrer to the petition was good. See Leather Manufacturers’ National Bank v. Morgan, 117 U. S. 122 (29 Law ed. 811, 6 Sup. Ct. 657); McNeely Co. v. Bank of North America, 221 Pa. 588 (70 Atl. 891, 20 L. R. A. (N. S.) 79); and see also, in this connection, Atlanta National Bank v. Burke, 81 Ga. 597 (7 S. E. 738, 2 L. R. A. 96).