95 So. 920 | Ala. Ct. App. | 1923
The complaint fails to aver, and the evidence to show, that there was due demand made on the bank for payment after the deposit of $104 was transferred to the account of Mr. Randall, in correction or error in the first deposit to the account of Prickett, paid out of the Randall-Adams special fund. The requisite conditions precedent to a collection against a bank for funds on general deposit in such bank, and subject to withdrawal, were discussed in First National Bank of Montgomery v. williams,
A special deposit in a bank, or moneys for a specific purpose, remains the property of the depositor, or the beneficiary of the special deposit, as the case may be, until the terms of such deposit or escrow have been complied with, or until such terms have been modified by the parties at interest. Jones v. First National Bank,
The preponderance of the evidence was such as to plainly and palpably show that the judgment is wrong. Cobb v. Malone,
The original draft or check left with the bank for collection by J.B. Prickett was drawn in his favor by P.O. Randall, and by error paid, or reported as paid, by the misappropriation of a part of the proceeds of the special deposit in question. In the act of the attempt at collection of Prickett's check by the bank, the bank was the agent of the payee, the plaintiff, and any error made by such agent in such attempt at collection must be visited upon Prickett as the principal in such action. The correction as to plaintiff's account was made in due course and according to the justice of the circumstances.
If the court erred in overruling demurrer to the complaint, it is immaterial, since there was error in rendering judgment against the defendant.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.