89 Pa. Super. 537 | Pa. Super. Ct. | 1926
Argued October 28, 1926. This is an action of assumpsit brought by the plaintiff, a hotel company in New York City, to recover from the defendant, a bank in Philadelphia, the amount of certain checks, which plaintiff averred in its statement it deposited in a New York bank for collection, which New York bank sent said checks to a second New York bank for clearance and the latter forwarded the same to the defendant at Philadelphia for collection; that the defendant sent said checks directly to the Citizens Bank of Sandersville, Georgia, the bank upon which the checks were drawn; that the latter retained the checks and wholly failed to remit the amounts thereof; that the defendant has never accounted to the plaintiff for said checks or for the amount thereof; that the defendant had notice that the bank to which it sent the checks directly for payment was the bank upon which the checks were drawn, and that the act of the defendant in forwarding the checks directly to the bank upon which they were drawn was not the exercise of due care and was a violation of the duty which it owed to the plaintiff. The defendant filed an affidavit raising the question of law that the statement failed to disclose a right of action in the plaintiff against the defendant and the Municipal Court sustained that statutory demurrer and entered judgment for the defendant; which judgment was reversed by this court, for the reasons stated in an opinion by our brother GAWTHROP, in 87 Pa. Superior, Ct. 94. When the record was returned to the court below the defendant filed an affidavit of defense alleging a defense upon the merits. The court below held the affidavit of defense to be evasive and insufficient and entered judgment in favor of the plaintiff, from which judgment we have this appeal by the defendant. *540
The questions involved in this appeal, stated by the defendant as required by the rule of this court, may be thus summarized: (1) When a defendant avers in his affidavit that he "has exhausted all sources of knowledge which are open to him for the purpose of determining the truth of the averments in the statement of plaintiff, and that from its inability to obtain any information on the subject, coupled with its general knowledge of the matter, he believes and avers that said averments of the plaintiff are untrue, and so expects to be able to prove at the trial of the case," is it necessary for the defendant to set forth the method or character of inquiries made in the alleged search? (2) Where the holder of a check deposits it with a New York bank for credit to the account of the plaintiff and the New York bank credits said check as a cash item to the account of the plaintiff on its books, and then sends it to a second New York bank for clearance, and the second bank in New York forwards it to a bank in Philadelphia for collection, is there such privity of contract existing between the original holder of the check and the Philadelphia bank as to entitle such holder to maintain an action of assumpsit against the Philadelphia bank, if for any reason the proceeds of the check are not received by the original holder?
It may here be observed that the questions which the appellant has stated to be involved in this appeal do not challenge the alleged liability of the defendant for its negligence in sending the checks for collection directly to the bank upon which they were drawn. The sending of the checks to the bank upon which they were drawn was not a fulfillment of the proper measure of duty of the defendant to the owner of the checks, the collection of which it had undertaken: Bank v. Goodman,
The second question stated to be involved does not arise under any proper consideration of the statement and the affidavit of defense. The statement distinctly averred that the checks were deposited for collection. The attempt of the defendant to deny this averment was manifestly evasive. The affidavit of defense averred "on information and belief that plaintiff deposited in the Hudson Trust Company at New York ...... [the checks in question] for credit to the account of said plaintiff, and that said Hudson Trust Company credited said cheeks as cash items to the account of plaintiff on its books." This was a mere allegation of information and belief, without stating that defendant had made any inquiry to ascertain the facts, or the sources from which the information was derived, and without an averment that the defendant expected to prove the suspected fact at the trial. The mere fact that a bank credits a customer with the amount of a check, indorsed by him in blank, deposited in his account, does not, in the absence of a special agreement, constitute the bank a holder of the paper for value; the title to the check remains in the depositor. The relation arising from such a transaction, as *543
between the bank and the depositor, is that the former becomes the agent of the latter for the purpose of collection: Hazlett v. Commercial Bank,
The judgment is affirmed.