170 Ky. 690 | Ky. Ct. App. | 1916
. Opinion op the Court' by
Affirming.
Appellant,- First National Bank- of Jackson; and appellee, Hargis Commercial Bank & Trust Company, are banking corporations located in tbe- city of Jackson, this state. On October 4, 1913, one, Stephen Little,- delivered to-appellant-in payment of a note -he: was owing.-it;
By the original petition a recovery was sought upon the ground that Little, the drawer of the check, had, as alleged, money on deposit in the appellee bank sufficient in amount to pay it; that the giving of the check to appellant operated as an assignment, of the amount Little had on deposit in the appellee bank for its payment, and, the refusal of the latter to pay the check upon its presentment, made it liable to appellant as' the holder of the check for' the amount thereof. By the amended petition it was, in substance, alleged that the1'deposit in the appellee bank to Little’s credit of an amount sufficient to pay the check was shown by a pass book furnished by it to him, which pass book was exhibited to appellant by Little when he paid it the check of $750.00;-that the making and delivery to it-of the check by Little constituted an appropriation of such part of the latter’s money on deposit in the appellee bank as was necessary to pay it; and that the refusal of appellee- to pay the cheek amounted to a wrongful conversion by it of so much of the money on deposit with it to Little’s credit as would pay the check and made it liable to appellant in damages for such conversion,, at least to the amount of the check.- . ••
The demurrer confesses the facts properly alleged-in the petition, as amended. For the purposes of the demurrer it-must, therefore, be taken-as true that at-the time the check given appellant by Little was- presented by the-former to appellee for payment, Littffi had on deposit-with-the latter money sufficient■ to pay the-check and that its refusal to pay the check was an-arbitrary act. But do these facts, if true, entitle-appellant, to recover of appellee in.this, action, the. amount, of-the.
“The acceptance of a bill (or check) is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It'must not express that the drawee will perform his promise by any other means than the payment of money.”
In Ewing v. Citizens Nat’l Bank, 162 Ky. 551, we held that a check of itself does not operate as an assignment of any part of the fund to' the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check; and that where a check is certified by the bank on which-it is drawn, the certification is equivalent to an acceptance, but that until such certification or acceptance is given in writing, the bank cannot be made liable to any holder of the check. It is patent, therefore, that the holder of a check cannot, by an action against the bank upon which it is drawn, recover of it the amount of such check, unless and until the check has, in writing, been accepted or certified by it. Such acceptance or certification
Counsel for appellant concedes that the statute, supra, destroys the rule that the giving of a check operates as an assignment, for its payment of the fund upon which it is drawn, and forbids any recovery against appellee upon that ground, which is relied on in the original petition; but insists that upon the claim for damages made in the amended petition against appellee for failing to pay the check, appellant is entitled to recover. This contention is illogical and without authority of law. Manifestly, if an action would not lie against appellee for its failure to pay the check, it would not be liable in damages for such failure. The amended petition neither broadens the scope of the original petition nor states a new cause of action. It, therefore, follows that appellee’s demurrer to the petition as amended was properly sustained.
Wherefore, the judgment is affirmed.