248 P. 947 | Cal. Ct. App. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *364
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *365 Plaintiff had judgment in an action against the defendant for negligently paying the amount of a check upon which payment had been ordered stopped, from which judgment the defendant appeals.
Omitting the formal part, the complaint contains the following allegations:
"That the plaintiff on the 18th day of November, 1924, had on deposit in said bank operated and conducted in said City of Sacramento by the defendant the sum of $823.31, or thereabouts.
"On said 18th day of November, 1924, plaintiff drew a check against said account on deposit in said defendant's bank in favor of one M. Yamakita in the sum of $436.50; said check being post-dated November 27, 1924. After the drawing and delivery of said check to said M. Yamakita, and before the same was presented to and paid by the defendant, to-wit: on November 20, 1924, the plaintiff notified and instructed defendant not to pay said check when presented, *366 and to stop payment on the same, which the defendant then and there agreed to do.
"That the defendant, contrary to said agreement hereinabove set forth, negligently and carelessly, on the 29th day of November, 1924, paid said check in full upon the same being presented by one S. Fujita, sometimes known as S. Yamakita, to whom said check had been endorsed by said M. Yamakita, as plaintiff is informed and believes. That after the payment of said check said defendant deducted and withdrew from the account of this plaintiff said sum of $436.50, and debited his account with that sum.
"That plaintiff has demanded of the defendant, on numerous occasions prior to the filing of this complaint, the payment and return to him of said sum of $436.50, but the said defendant refused and still refuses to do so.
"That by reason of the foregoing there is now due, owing and unpaid from defendant to plaintiff the sum of $436.50.
"Wherefore, plaintiff prays judgment against defendant for the sum of $436.50; for interest on said sum as is allowed by law; for his costs of suit herein expended, and for such other, further and different relief as to the Court may seem just."
To this complaint the defendant demurred, setting forth several grounds, of which the following only are urged on appeal: That said complaint does not state facts sufficient to constitute a cause of action; that the complaint is uncertain in that it does not appear, nor can it be ascertained therefrom whether Yamakita was or was not a holder in due course; whether or not plaintiff had been damaged by the payment of the check; whether or not plaintiff received full value as a consideration for his delivery of said check to the payee, Yamakita. The defendant's demurrer being overruled, the answer was filed pleading the stop-noticein haec verba, to wit:
"Branch Stop Payment Bank of Italy Head Office: San Francisco of check drawn by H. Hiroshima Number 22 dated November 27th Favor of M. Yamakita Reason for stopping payment over paid *367 Date stopped 11-20 Time 3:30 The undersigned makes the foregoing request as an act of courtesy only, and hereby indemnifies you against, and releases you from all liability by reason of compliance or non-compliance therewith.
H. HIROSHIMA
Address
Ack. paying teller R.M. F.M.Y. Bookkeeper Arthur Caton Statem't Clerk."
And, also as a special defense, pleaded in its answer as follows:
"That said plaintiff on or about the 18th day of November, 1924, purchased from M. Yamakita a restaurant located on `K' Street in the City of Sacramento, State of California, and entered into, and has since remained in the possession of said restaurant. That the check mentioned and described in paragraph `III' of the complaint herein was by plaintiff issued and delivered to said M. Yamakita in payment of the purchase price of said restaurant, and was accepted by said M. Yamakita as a full payment of said purchase price. That said M. Yamakita in the regular and due course of business endorsed, signed and transferred said check to S. Fujita, who paid to said M. Yamakita the amount of said check, and the payment thereof by defendant to said S. Fujita did not injure or damage the said plaintiff, who, at the time said check was received, and has ever since, and now has and retains the full value and consideration for said check."
[1] In support of its demurrer, the appellant makes the following argument: "The most striking omission of the complaint is found in the absence of any allegation that plaintiff was damaged by the defendant's payment of plaintiff's check. The complaint purports to count upon a breach of the agreement not to pay a check, or upon a tort for the negligent or careless payment of said check. In either event the plaintiff should have alleged that he was damaged by the act complained of, or should have set forth how or in what manner he was damaged in the premises." *368
A reference to section 426 of the Code of Civil Procedure discloses a complete answer to the appellant's contention as to the sufficiency of the complaint. Here we have a statement of the facts constituting a cause of action in ordinary and concise language, to wit: The money on deposit, the issuance of the check, the giving of the stop-notice and the failure of the defendant to observe the same, a demand for the money, a statement that it has not been paid and the prayer of the complaint for the recovery of the money. The third subdivision of section 426 of the Code of Civil Procedure requires a statement of either the sum of money sought to be recovered or the amount of damages, not both. The citation (8 Cal. Jur. 882) upon which the appellant relies to sustain his demurrer does not require anything further that is stated in the plaintiff's complaint. It is there said: "A demand for the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated. . . . The rule is sustained in many decisions that a complaint which states the facts showing the plaintiff's damage, in a manner sufficient to sustain a judgment, and concludes with a prayer for damages in a named sum, is sufficient though it fails to contain a formal allegation that plaintiff has been damaged in a stated amount." Here the complaint alleged that the plaintiff had so much money on deposit in defendant's bank, that the defendant wrongfully paid out a certain sum thereof and recovery of that sum is demanded. This constitutes all the facts necessary to show that plaintiff's money has been wrongfully paid out by the defendant. Any further allegation would be surplusage. [2] Where the payment of a certain sum of money is alleged to have been wrongfully made, the amount of damages suffered necessarily appears from the statement of the facts thus set forth. [3] Whether there was or was not any consideration moving between the plaintiff and Yamakita for the issuance of the check is a matter entirely collateral to the issues presented to the trial court in this action as to whether the defendant did or did not wrongfully pay out the plaintiff's money. While the relation between the bank and a depositor is that of creditor and debtor, yet for the purpose of paying the check it was subject to the orders of the plaintiff in relation to the payment of said check, irrespective of whether Yamakita *369
was or was not a holder in due course. The appellant further in its argument along this line cites the case of Unaka NationalBank v. Butler,
[5] The rule followed in this state and the one followed by the great weight of authority is stated in 7 C.J. 701 as follows: "As a general rule the drawer of an uncertified check can revoke his order for the payment of his funds, or in banking phraseology `stop payment' at any time before the bank's acceptance of the check, and the bank is bound by such revocation and has no right to pay the check after notice thereof." The rule, as stated in Corpus Juris, is supported by authorities too numerous to be set forth *370
herein. That the drawer is liable to the holder of the check for the consequences of his conduct in stopping payment is a different matter. This is the point which was considered in the case of Usher v. Tucker,
In relation to the special defense set up by the defendant, the record shows the following: "Q. Why did you give him the check? What for you give him the check?" Objected to on the ground that it was no concern of the bank. Objection sustained. "Mr. McLaughlin: Now, in order to make my point clear, I don't know just what kind of procedure or legal deportment will do — I want to make my record — we offer to prove by this witness now on the stand, and by other witnesses here present, that this check was given by the plaintiff here in payment for a restaurant, and was the purchase price of the restaurant owned by M. Yamakita, and to whom the check was drawn; that Hiroshima entered in possession of the restaurant and still remains in possession, and there has been no payment other than the check. Mr. Henry: We make the same objection to the offer of *371
proof. Court: That would involve an independent controversy between these two men. Mr. McLaughlin: We simply want to make a record of your Honor's ruling on it. Court: Very well, I will refuse your permission to make that proof." In support of this offer the appellant again cites the case of Usher v. Tucker,supra, but, as we have seen, the Usher case does not support any such rule of evidence as contended for by the appellant. It does support the rule that Yamakita would be entitled to prosecute an action against the plaintiff for the recovery of damages suffered by him. Any other rule would lead to trial of all outside and collateral matters between the plaintiff and Yamakita as to whether the plaintiff had or had not received full value for his check, whether he had or had not been defrauded in the sale, whether he was induced to purchase the restaurant in question by fraudulent and deceitful practices, and, in fact, all other matters which might be inquired into in an action concerning the sale and purchase of the restaurant referred to and the legality of such sale and the liability of the plaintiff to pay therefor, and, also, the sum of money which he would be liable to pay. A mere statement of these facts is sufficient to show the correctness of the court's ruling. The bank is not interested in the check. It has no interest in the contract between the plaintiff and Yamakita. Its duty is simply to follow the order given by the drawer of the check. It has been held that a bank cannot decline payment of a check by setting up that it was given for an unlawful purpose. (McCord v. California Nat. Bank ofSan Diego,
[7] It is further urged by appellant that the words "the undersigned makes the foregoing request as an act of courtesy only, and hereby indemnifies you against, and releases you from all liability by reason of compliance or non-compliance therewith," contained in the stop-notice absolutely releases the defendant from all liability. The transcript shows that the plaintiff went to the defendant bank and stated to the defendant that he wanted to stop payment on the check herein referred to. Whereupon the following conversation took place: "Q. What did you say? A. I say I want payment stopped. Q. What did he say? A. He says `all right,' and he say `how much amount.' Q. How much amount? A. And `what is name' — I say `M. Yamakita, my check.' I give check M. Yamakita and amount, $436.50, I think, and I want payment stopped — all right — I can't write, — Q. You can't write? A. No, and he says `sign.' Q. He gave you some paper? A. Yes; and he says `this paper there to sign name.' Q. All right, he write down on some paper? A. Yes. Q. And say `you must sign,' is that right? A. Yes; I no understand if I sign, I ask, he says, `if you want payment stopped, you must sign' and I understand, and I sign, that is all. Q. Can you read the English language? A. No, I can't read. Q. You couldn't read then, the paper that this man in the bank asked you to sign? A. No, sir. . . . Mr. McLaughlin: I object on the ground you can't impeach writing in that way. . . . The Court: I will hear the evidence. . . . Court: Go ahead. I will hear it. Mr. Henry: What was the question? Court: You asked if he read the English language, and he said he couldn't. Mr. Henry: And that he therefore couldn't read the document that he signed. Q. Could you read the paper that you signed? A. No, I can't read — he says `sign' that is all, I sign. Q. Did anybody read it to you? A. No. Q. This man in the bank, he no read it to you? A. No, he says `sign.'"
The court found that the assent and signature to the stop-notice were given by the plaintiff under the influence of mistake and misapprehension and unconscious ignorance of the fact that said instrument contained a provision relieving defendant of liability in the event that it failed to stop payment *373
of the check. The court also found as a fact and also drew as a conclusion of law that the portion of the stop-notice which we have quoted was against public policy and void, also that there was no consideration moving from defendant to plaintiff for the execution of said agreement and also that the defendant, contrary to the notification and instruction of the plaintiff, heedlessly, negligently, and carelessly and without exercising ordinary or reasonable care, paid the check upon which the stop-notice was given, etc. Any one of these reasons would be sufficient to support the judgment. (Wolfsen v. Smyer,
[10] As to whether an agreement is or is not contrary to public policy, we quote from 14 C.J. 424, section 360: "If an agreement binds the parties or either of them to do, or if the consideration is to do, something opposed to the public policy of the state or nation it is illegal and absolutely void, however solemnly made. It is not easy to give a precise definition of public policy. It is perhaps correct to say that public policy is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be designated, as it sometimes has been, the policy of the law or public policy in relation to the administration of the law. Where a contract belongs to this class it will be declared void, although in the particular instance no injury to the *374
public may have resulted. In other words, its validity is determined by its general tendency at the time it is made, and if this is opposed to the interest of the public it will be invalid, even though the intent of the parties was good and no injury to the public would result in the particular case." Section
[11] It is not necessary to state that compliance by the defendant with a direction to stop payment of the check is not in law merely an act of courtesy. It is a bounden duty of a bank when notified to stop payment to use all reasonable efforts to comply with the directions so given. Compliance with one's obligations, while possibly courteously performed, is nothing more or less than doing what one is under obligation to do.[12] In the case at bar, immediately upon receipt of a verbal notice to stop payment of the check by the plaintiff, it became the legal duty of the defendant to comply therewith. The matter of the subsequent writing can at best be held nothing more or less, than additional identification of the check upon which notice to stop payment was given or being given. The wording of the stop-notice which the plaintiff was induced to sign in the manner shown by the evidence releases the defendant from all liability however negligent or otherwise. In other words, it simply purports to eliminate all the provisions of section
The judgment of the trial court is affirmed.
Needham, J., pro tem., and Hart, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 12, 1926.