64 Minn. 40 | Minn. | 1896
During the time covered by the transactions hereinafter mentioned plaintiff was carrying on a mercantile business in Duluth, and the defendant was carrying on a banking business in that city. Plaintiff was a customer of the defendant, and kept a deposit in its bank, which he was in the habit of drawing out by means of checks, and which was held by the bank for the purpose •of paying such checks. He had drawn on the bank a check for $42.15 in favor of one firm, and another for $54.60 in favor of another firm. These checks came through the clearing house, and were on October 20, 1893, presented for payment to the bank, and payment was refused for want of funds, though the plaintiff then had on deposit in the bank, subject to his check, the sum of $235.22. The checks were returned through the clearing house to the holders thereof. The reason why the bank refused to honor the checks was that it had by mistake charged up to plaintiff’s account a note for
It is held by the authorities that in such a case the plaintiff’s recovery is not limited to nominal damages, but he is entitled to recover general compensatory damages. Rolin v. Steward, 14 C. B. 595; Schaffner v. Ehrman, 139 Ill. 109, 28 N. E. 917; Bank of Commerce v. Goos, 39 Neb. 437, 58 N. W. 84; Patterson v. Marine Nat. Bank, 130 Pa. St. 419, 18 Atl. 632; 3 Am. & Eng. Enc. Law, 225; 1 Sutherland, Dam. § 77.
The ca.se of Patterson v. Marine Nat. Bank, supra, seems to place the right to recover more than nominal damages in such a case on the ground of public policy, but the other cases place it rather on the ground that the wrongful act of the banker in refusing to honor the check imputes insolvency, dishonesty, or bad faith to the drawer of the check, and has the effect of slandering the trader in his business. We are of the opinion that the recovery of more than nominal damages can, on sound principle, be sustained on the latter ground, where the drawer of the check is a merchant or trader. To refuse to honor his check is a most effectual way of slandering him in his trade, and it is well settled that to impute insolvency to a merchant is actionable per se, and general damages may be recovered for such a slander. Townshend, Sland. & L. § 191; Odger, Libel & S. 80 (78).
. Respondent’s position that an action of tort cannot be maintained in such a case as this, and that plaintiff’s only remedy is an action on contract, in which only nominal damages can be recovered, is not sustained by the authorities.
The case of Marzetti v. Williams, 1 B. & Ad. 415, cited by him, was an action in tort. The amount of the verdict is not reported, but it is very evident that it was only for a nominal amount, and the only question before the court was whether or not the defendant was entitled to a nonsuit because the action should have been brought
It necessarily follows from the foregoing conclusions -that the order appealed from must be reversed. So ordered.