It is аdmitted in the pleadings in this action that the check dated 21 October, 1926, drawn by Moye & Gentry, and payable to the order of plaintiffs, was presented for payment to defendant, the drawee bank, without endorsement, during the day on which it was drawn; and that the defendant bank paid the proceeds of said check to the person who made such presentment and charged the amount thereof to the account of the drawer. The only issue of fact arising upon the pleadings is as to whether presentment was made by, and payment made to plaintiffs, or to some persоn authorized by them to make such presentment and to receive such payment. There was evidence on behalf of plaintiffs tending to show that presentment was not made by and that paymеnt was not made to plaintiffs or to either of them, and that the person who presented the check for payment and to whom payment was made was not authorized by plaintiffs, or by either of them to make such *136 presentment, or, to ¡receive snob payment. It was, therefore, error to allow defendants’ motion for judgment as of nonsuit, at the close of plaintiffs’ evidence, аnd to dismiss the action, unless .upon all the facts admitted in the pleadings, or shown by the evidence, plaintiffs are not entitled to recover of either of the defendants in this action. . Upon this aрpeal it is assumed, as plaintiffs’ evidence tends to show, that the check was presented by and that payment was made to some person, who was without authority from plaintiffs or from either of them to present the check, ox’i do recover payment therefor. This assumption is in. accord-: anee with the well established rule that upon a motion for judgment is of nonsuit the evidencе is construed most strongly for the plaintiff.
■ The law in this State, -both by statute and by authoritative decisions of this Court, is to the effect that the payee of a check cannot maintain an action uрon the cheek against the bank on which the check is drawn, unless.and until the check has-been accepted, or certified by the bank. C. S., 3171.
Trust Co. v. Bank,
In
Trust Co. v. Bank, supra,
is said by
W.alker,
/...•■“We have held tha^.wherp: .^(b'ank has refused to-pay-a check the .holder, has no сause-of action -.theTOffR..!,against the bank, but. must seek his remedy against th'e drawer, theb'a&k:being liable only to the drawer for its breach of promise to pay thgiOheck, there-being an implied promisе by the bank, - arising from the .deposit pf .bisfjfunds will1, if; that it will, pay his checks when and as th.ey.^re-prese^tpd!v«i'f. the- bank fails to perform this promise, it-becomes,, liable* to !the;.,d.i:ajyer..fpr .the damages sustained by him,оn account of .its refusal orffailurp-.topay his check.- But the holder of the check can only s.ue the drawer, and cannot sue.the-bank. The reason why the holder of-the check is not..-perniitted,- to-sue .-the bank has.been
*137
stated by the authorities to be that there is no privity betwéeií th'é'holder of the check and the bank, until by certification "of the chéck or- acceptance'thereof, express or' implied, or by aiiy'Other act or "conduct it has made itself directly liable to the holder.” • In support of this 'statement of the law,
Bank v. Bank,
In
First National Bank v. Whitman,
In the instant casé it is admitted that upon presentation’ of the check, drawn by its depositor, who had to his credit with the bank an amount more than suffiсient for the payment of-the check, thé: drawee bank assented 4o the order-of" its depositor, retáined the cheeky and charged the amount of the check to his account. The-defendant'hank then paid the proceeds of the cheek to the person who presented it'fór páyment. Both the drawee bank and the drawers of the cheek allege that the check was paid by the bank. If the jury shall find-from the evidence that the proceeds- of the check were not paid to plaintiffs,' or' to sbihé person authorized byfhe plaintiffs to present- the check for payment'and to receive said proceeds for or on behalf of plaintiffs', then plaintiffs'as the-payees Of.-the unendorsed-cheek are entitled-'to'recover'of defеndant bank the proceeds- of' the check.' The-defendant bank adfnits- that' it assented'-to the order of- the drawers of the'cheek to páy'O'ut'bf théir funds, on deposit with it, the amount named in' the 'check j'tháifif ébаrgéd said-.'amount to- the-' account- of the 'drawers,- ánd' thát' it retained the check fin its possession. It thereby became-liable to "the Owner of the check for its amount; the payment of this amount to some pérsoii other than the owner of the check, or to some person not authorized by said owner to receive payment, did not discharge the bank of this liability.
Pickle v. Peoples National Bank,
*138 In the above cited case, in wbicb it is beld tbat tbe acceptance of a check, so as to give a right of action to the payee, is inferred from the retention of the check by the bank, and a. subsequent charge of its amount to the drawer, although it was presented by and payment made to an unauthorized person, Lurton, J., writing the opinion for the Court, says: “Where a bank has negligently paid a check to an improper person, it would seem that, in good conscience, the true owner and payee ought not to be remitted to his action against a palpably insolvent drawer, for thеreby he may lose his debt altogether. A legal principle, however, stands in the way, in that there is no privity between himself and the bank until the bank has assented to the order of the drawer requiring it to pаy to the holder of the check the sum of money named. The assent which is necessary before there is any contract relation between the holder of the check and the bank is what is meant by acceptance. This assent need not be by endorsement of ‘good’ across the check, or by any other particular words, either in writing or oral. The question of assent or acceptance is one of fact, and may be made out by any of the methods by which a fact is proven.”
The act or conduct of defendant bank, in the instant case, with respect to thе check payable to the order of plaintiffs, and presented for payment without their endorsement, was in effect an acceptance of the check, and renders the bank liable to the true owner of the check for its proceeds.
We do not now decide, upon this record, whether or not, in any event, Moye & Gentry, the drawers of the check, are liablе to plaintiffs, or whether or not they may be held liable to their codefendant, the National Bank of Greenville. These questions are not now presented for decision. The cause of аction alleged in the complaint is not founded upon the cheek; plaintiffs do not demand judgment against the drawers of the check. They have sued the drawee bank. Moye & Gentry have beеn made parties defendant upon motion of defendant bank. The authority given by them to the bank to pay their checks, payable “to order” just as if made payable to “bearer,” cannot affect the rights of plaintiffs. Whether in the event plaintiffs recover in this action of defendant bank, the drawers of the check may be held liable to the drawee bank, is not presented for decision.
There was error in sustaining the motion of defendants for judgment as of nonsuit, and in dismissing the action. The judgment must be
Reversed.