30 S.E.2d 118 | Ga. Ct. App. | 1944
1. A deposit of money in a bank on general deposit creates the relation of debtor and creditor between the bank and the depositor, and the bank can discharge its liability only by paying the money to the depositor, or as directed by him; and can not discharge its liability to the depositor by accepting and paying forged checks drawn in the name of the depositor against the bank.
(a) The allegations of the petition that while the depositor was on his death bed and not in his right mind and not physically or mentally in condition to transact business, his name was written on a check by one of the defendants by holding the depositor's hand and guiding it, and that the signature on the check was not written by the depositor, and was not his act and deed, were sufficient to charge that the check in question was a forgery.
2. The provisions of the Code, § 13-2044, being punitive in their nature, must be strictly construed, and, ordinarily, it is an issue for the jury to determine whether or not the facts pleaded are such as will absolve the *79 depositor from the penalty prescribed by the act for failure to give the notice provided for therein.
(a) Before a bank is entitled to the notice prescribed by the Code, § 13-2044, it must appear that the bank in good faith had accepted and paid a forged or raised check and charged same to the depositor's account, and under the allegations of the petition in the present case whether or not the bank acted in good faith in accepting the forged check and charging same to the depositor's account was an issue of fact for the jury.
3. The petition set out a cause of action as against Georgia Railroad Bank Trust Company, and the court erred in sustaining the general demurrer of that defendant, and in dismissing the petition as to it.
The Georgia Railroad Bank Trust Company demurred to the petition upon the ground, "That there is no cause of action set forth, for that the petition shows on its face that the plaintiff's intestate, Ed White, signed the check in the amount of seven thousand (7000.00) dollars, to recover which the suit is brought, and that there is no allegation of knowledge of this defendant that the said Ed White did not have the capacity to sign a check on his account in this defendant's bank." The court sustained this demurrer and dismissed the petition as to the Georgia Railroad Bank Trust Company, and the exception here is to that judgment.
1. A deposit of money in a bank on general deposit creates the relation of debtor and creditor between the bank and the depositor (McGregor v. Battle,
2. But the defendant in error contends that, under the provisions of the Code, § 13-2044, which provides: "No bank which in good faith has paid, and charged to the account of a depositor, any money on a forged or raised check issued in the name of the depositor shall be liable to said depositor for the amount paid thereon, unless, (1) within 60 days after the return to the depositor of the voucher representing such payment, the depositor shall notify the bank that the check so paid was forged or raised, or, (2) in the event the voucher has not been returned to the depositor, within 60 days after notice shall have been given by the bank to the depositor to have his pass book balanced and to call for his vouchers. The notice herein referred to may be given by mail to said depositor at his last known address;" the petition fails to set out a cause of action for that neither compliance with, nor the impossibility to comply with said section, is alleged in the petition. This provision of the banking law is punitive in its nature, and penalizes the depositor by depriving him of a right, which otherwise he would have against the bank, to repudiate a forged check. The statute being punitive in its nature, and tending to abridge and curtail the rights and remedies of the depositor against whom a check has been forged, must be strictly construed. Samples v. MiltonCounty Bank,
3. The petition set out a cause of action, and the court erred in sustaining the general demurrer of the Georgia Railroad Bank Trust Company, and in dismissing the petition as to that defendant.
Judgment reversed. Felton and Parker, JJ., concur.