41 S.C. 177 | S.C. | 1894
The opinion of the court was delivered by
The object of this action was to recover the amount of money mentioned in a check drawn by Jervey & Co. on the 2d of January, 1892, on the defendant bank, payable to the order of the plaintiff. Inasmuch as the plaintiff resided, and did business, in a distant State, the check was not presented for payment until the 8th of January, 1892, when payment was refused (“no funds”), and on the next day it was formally protested for non-payment.
Without undertaking to set out the evidence adduced at the trial, which appears in the “Case,” it is sufficient to state here that there was testimony tending to show that Jervey & Co. were merchants in the town of Greenwood, also engaged in the business of buying and selling cotton; that they had been doing business with the defendant bank for several years, the bank advancing the money to buy the cotton, and taking from Jervey & Co. drafts drawn by them against the cotton so bought; that Jervey & Co. kept two deposit accounts with the bank, one of which is designated as the merchandise account, upon which was credited money.arising from the sales of merchandise, and upon which checks were drawn to pay for the merchandise bought, and the other designated as the cotton
It seems that at the commencement of the trial a motion was made bo dismiss the complaint upon the ground that the facts stated therein were not sufficient to constitute a cause of action, inasmuch as there was no allegation that the check had been accepted by the bank; but this motion was refused, and the trial proceeded. At the close of the testimony on the part of the plaintiff a motion for a non-suit was made upon two
We shall not undertake to state or consider these numerous grounds in detail, but will confine ourselves to such questions as these grounds properly present: 1st. Whether there was error in refusing the motion to dismiss the complaint upon the ground above stated. 2d. Whether there was error in refusing the motion for a non-suit. 3d. Whether there was error in any of the rulings as to the competency of the testimony offered. 4th. Whether the action could be maintained without allegation and proof that the bank had accepted the check. 5th. Whether the bank had the right to set up as a .defence to the action the balance due to it by Jervey & Co. on the cotton account or on the past due notes. 6th. Whether there was error in misstating the testimony to the jury. 7th. Whether there was error in the instructions to the jury as to the right of plaintiffs to recover a part only of the amount mentioned in the check. 8th. Whether there was error in the instructions given to the jury as to the doctrine of estoppel.
That case shows, just what the Circuit Judge held in this case, that the true theory is that, when a bank receives the money of a depositor and places the amount to the credit of such depositor on his deposit account, the implied contract on the part of the bank is, that it will pay all checks drawn by the depositor, in such amounts and to such persons as may be mentioned in such cheeks, as long as there remains to the credit of the depositor on such account an amount sufficient to pay such checks. That case also shows that it is an entire mistake to say, as has been said in some of the cases, that there is no privity between the bank and the holder of the check, for, as we have seen, the contract of the bank is to pay any person who may present the check of the depositor, it matters not who he may be. In this respect it is analogous to the case of an ordinary promissory note, payable to a named payee, or order, what particular person may, by the order of the payee, become entitled to receive the money mentioned in the note may not be known to either maker or payee at the time the original promise was made, but no one ever supposed that there was any want of privity, by reason of that fact, between the maker of the note and the person to whom it was endorsed. So here the promise of the bank is to pay to whoever may be named in the check, and, therefore, upon the breach of such promise the person named has a right of action for such breach. But, as we have said, in view of the masterly discussion of this question by Johnstone, J., in the case above cited, we need not pursue the subject further.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.