Opinion
37046.
DECIDED FEBRUARY 12, 1958.
Complaint. Fulton Civil Court — Appellate Division. December 2, 1957.
William F. Woods, for plaintiff in error.
Drennan Brannon, Lewis Cenker, contra.
Under the pleadings in this case, the court did not err in sustaining the general demurrer to the petition as amended.
DECIDED FEBRUARY 12, 1958.
Mrs. Dana Watson, hereinafter called the plaintiff, brought suit against the South Side Atlanta Bank, hereinafter called the defendant, in which she alleged (paragraph 3 of the petition) that the defendant is indebted to the plaintiff in the sum of $250; that (paragraph 4) on October 27, 1956, Edward B. Gregory issued a check to the South Side Atlanta Bank requesting that the defendant pay to the order of J. C. Watson the sum of $250; that (paragraph 5) on October 28, 1956, J. C. Watson, for valuable consideration, endorsed and delivered the check to his wife, the plaintiff here; that (paragraph 6) on October 28, 1956, the plaintiff endorsed the check and delivered it to the Austell Bank for deposit and credit to the account of the plaintiff; that (paragraph 7) on October 29, 1956, the Austell Bank endorsed the check as follows: "Pay to the order of any bank, banker or trust company. All prior endorsements guaranteed." Paragraph 8 of the petition alleges that the check was then transferred to the Fulton National Bank of Atlanta thence to the Atlanta Clearing House and from there (paragraph 9) to the South Side Atlanta Bank. Paragraph 10 of the petition alleges that the defendant then collected the $250; that (paragraphs 11, 12 and 13) the plaintiff has demanded that the sum be turned over to her as the legal owner and that the defendant has failed and refused to deliver the money to the plaintiff.
The defendant answered, denying paragraphs 3, 10, 11, 12 and 13, and alleging that for want of sufficient information the defendant could neither admit nor deny paragraphs 4, 5, 6, 7, 8 and 9, and alleged that the defendant was not indebted to the plaintiff in any sum whatsoever.
The defendant filed demurrers as follows: "1. Plaintiff's petition as a whole does not set forth any cause of action against the defendant. 2. That plaintiff's petition appears to be based on a check or a bill of exchange and no copy of such writing has been attached to the petition as required by Code § 81-105. 3. That paragraph 4 of the plaintiff's petition is vague and ambiguous, in that it does not clearly allege whether the drawer of said check delivered the same to the drawee or to the payee. 4. That paragraph 6 of the plaintiff's petition is ambiguous in that it alleges that plaintiff endorsed and delivered said check to the Austell Bank for a special purpose. Said paragraph is not clear whether plaintiff's endorsement was either special or in blank or whether it was restrictive, qualified, or conditional. 5. That paragraph 7 of the plaintiff's petition is vague and indefinite as to plaintiff's contention in that it fails to specify whether the Austell Bank was authorized to affix its special endorsement to said check limiting a further negotiation of the instrument to any `bank, banker, or trust company'. 6. That paragraph 8 of plaintiff's petition is vague and indefinite in that it does not allege whether the Austell Bank transferred title to said check to Fulton National Bank nor when said check was transmitted to the Fulton National Bank; nor does it allege whether the Fulton National Bank transferred title to said check to the Atlanta Clearing House, nor when such transfer was made. 7. That paragraph 9 of plaintiff's petition is vague and indefinite in that it alleges delivery of said check to the defendant but does not allege whether said delivery was a negotiation of the check; or a presentment of the check to the drawee for acceptance and/or payment. 8. That paragraph 11 of the plaintiff's petition is defective and should be stricken from the petition because it contains allegations directly at variance from the allegations in paragraphs 6 and 7 of the petition, wherein plaintiff alleges that she negotiated and transferred title to said check to the Austell Bank, while in paragraph 11 plaintiff asserts that she did not at any time transfer title to said check; and further in said paragraph 11 plaintiff alleges that she has demanded of the defendant a sum equivalent to the face amount of said check without alleging that she presented said check to the drawee for payment and that said drawee accepted said check. 9. The paragraphs of plaintiff's petition hereinabove complained of, and the petition as a whole fail to set forth with sufficient clarity facts enabling defendant to determine why plaintiff asserts defendant has any liability in these premises. Said paragraphs and petition fail to clearly allege the sequence and order of endorsement, negotiation, delivery, and presentment of said check to drawee for acceptance; and (if accepted) the nonpayment after acceptance by drawee to the holder of the check entitled to receive payment; all of which would be legally necessary to charge the defendant with any liability as drawee. Plaintiff should be required to amend said petition and paragraphs objected to, and failing therein, said paragraphs should be stricken and the petition dismissed."
The plaintiff then amended the petition in the following respects: "1. Plaintiff amends her petition by adding the following language to the end of paragraph 4 thereof: `Said check was delivered by Edward B. Gregory to J. C. Watson and a copy of said check is attached hereto and made a part hereof and is marked and designated as Exhibit A'. 2. Plaintiff amends her petition by adding the following language to the end of paragraph 6 thereof: `Said check was delivered to said Austell Bank for the sole purpose and intention of their collecting the amount thereof for and in behalf of plaintiff and was accepted by said bank for said purpose.' 3. Plaintiff amends her petition by adding the following language to the end of paragraph 8 thereof: `Said check was received by the Fulton National Bank on the 30th day of October, 1956, and was transmitted to the Atlanta Clearing House on the same date.' 4. Plaintiff amends her petition by adding the following language to the end of paragraph 9 thereof: `That on said date the check was returned through the bank in reverse order, as set forth herein, and the Austell Bank on the 2nd day of November, 1956, placed the check in the United States mail with a notation attached thereto, stating that the reason for nonpayment of said check was insufficient funds. That plaintiff never received said returned check, nor has she authorized anyone to receive same for her. That said check was not presented by plaintiff to the defendant for payment and the defendant has not paid said amount to plaintiff. That title to said check has not been transferred to any person by the plaintiff.' 5. Plaintiff amends her petition by adding the following language immediately following paragraph 9 and said new paragraph shall be known and designated as paragraph 9-A, to wit: `9-A. That the defendant received said check after the said 2nd day of November, 1956, by ways and means unknown to the plaintiff, but well known to the defendant. That plaintiff was not aware of this fact until on or about the 1st day of December, 1956, at which time she received her monthly statement of her account with the Austell Bank. That she immediately contacted the defendant and notified its agent, servant and employee, Mr. B. H. Thompson, who is president of the bank, of the facts, as set forth herein.' 6. Plaintiff amends her petition by adding the following language immediately following paragraph 10 and said new paragraph shall be known and designated as paragraph 10-A, to wit: `10-A. That the agent, servant and employee of the defendant, Mr. B. H. Thompson, who was at all times referred to herein upon the business of his master and acting within the scope of his employment, called the bank teller, Mrs. Mattie M. Adams, who cashed said check, into his office and inquired of her in the presence of the plaintiff if the check was presented to her by the plaintiff and she said that it was not.'"
The defendant then filed renewed demurrers as follows: "1. That by order of court of June 25, 1957, plaintiff was given twenty days leave to amend her petition to meet the criticism of defendant's demurrer on general grounds to the petition as originally filed. 2. That within said twenty-day period the plaintiff amends her petition in several particulars. That said period of twenty days has now passed and defendant now renews its demurrers originally filed on May 6, 1957, on each and every ground thereof, both general and special. 3. That plaintiff's petition as amended still fails to set forth any cause of action against the defendant. 4. That plaintiff's amended paragraph 4 purports to set forth a copy of the check in question (Exhibit A), without showing any copy of the endorsements and transfers which must appear on said check in view of the allegations contained in other paragraphs of plaintiff's petition as amended. 5. That plaintiff, having elected to attach a copy of the check, should be required to present a full and complete copy."
The court sustained the general demurrer and dismissed the petition, which order was affirmed by the Appellate Division of the Civil Court of Fulton County. It is to the sustaining of the general demurrer that the case is here for review.
We have come to the conclusion that the trial judge rendered a very good written opinion which we are adopting. That opinion is as follows: "The sum total of plaintiff's case is: One Gregory drew a check on defendant bank, payable to J. C. Watson. Watson `endorsed the same and delivered to plaintiff'; plaintiff negotiated the check (deposited it for collection) at Austell Bank. The check made its way through clearing house banks, one of which banks presented it to defendant bank for payment. The latter `collected the face amount of the check . . . from the account of Edward B. Gregory . . . plaintiff has demanded of the defendant . . . on numerous occasions that said sum be turned over to her due to the fact that she is the legal owner of said sum . . .' The demand has been refused. Said sum in equity and good conscience belongs to her.
"Defendant demurs on general and special grounds and the case is before the court for trial on demurrer.
"Opinion: Plaintiff invokes an ancient doctrine founded in Roman Law, aequum et justum. (Liberally translated: look at the matter through the eyes of equity without too much attention to rigid rules of law).
"The court will judicially know the universal practice employed to clear a check deposited with one bank, drawn on another, for the purpose of collection and ultimate credit. Each bank takes a whack at it with a rubber stamp, sending it on down the line to the bank on which it is drawn. If paid it is charged to the drawer's account and banks making endorsement hear of it no more. It is delivered to the drawer to justify debiting his account. If not paid it goes back through the same channel — all endorsements canceled — to the bank first receiving it to be flashed in the face of the disappointed depositor, either by a dent in his account or a demand for reimbursement.
"Plaintiff's bill gets the check through the clearing house banks to this defendant bank. There, she says, defendant bank collected from Gregory.
"Normally, if defendant bank collected from Gregory it would deliver the paid check to him and account through channels to the Austell Bank. It is inconceivable that any possible accounting gymnastics would permit this defendant bank to get the check through the channel described by plaintiff without accounting to Austell Bank — through channels — either by returning the dishonored check or by remittance. At any rate it would appear that plaintiff's causa doloris is with Austell Bank. Its obligation to her is direct — either to return the check which she deposited or credit her for it. No resort to the ancient rule mentioned is necessary for the reason that no `hyde bound' (hide-bound) rule of law bars her recovery.
"Since the case will be controlled by ground 1 of the demurrer other grounds need not be noticed.
"Judgment: Considered, ordered and adjudged that ground 1 of defendant's demurrer filed May 6, 1957, and directed to plaintiff's petition be sustained with twenty days leave to amend to meet the criticism thereof. Judgment on other grounds is reserved. This June 25, 1957."
The plaintiff amended the petition in accordance with the order of the judge, the defendant filed renewed demurrers whereupon the court sustained the demurrers and dismissed the petition on October 17, 1957. The Appellate Division of the Civil Court of Fulton County upheld the judgment of the trial judge. It is our opinion that this ruling was correct.
Counsel for the plaintiff has cited cases in support of the plaintiff's contention as follows: Whitehead v. Peck, 1 Ga. 140; Central Railroad v. First National Bank of Lynchburg, Va., 73 Ga. 383; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 ( 33 S.E. 175); Citizens Bank of Fitzgerald v. Rudisill, 4 Ga. App. 37 ( 60 S.E. 818); Rudisill v. Handley, 9 Ga. App. 789 ( 72 S.E. 189); Knight v. Roberts, 17 Ga. App. 527 ( 87 S.E. 809); Zapf Realty Co. v. Brown, 26 Ga. App. 443 ( 106 S.E. 748); Haupt v. Horovitz, 31 Ga. App. 203 ( 120 S.E. 425); Bank of Oglethorpe v. Brooks, 33 Ga. App. 84 ( 125 S.E. 600); Brackett v. Fulton National Bank, 80 Ga. App. 467 ( 56 S.E.2d 486); Swafford v. Certified Finance Co., 90 Ga. App. 83 ( 82 S.E.2d 168) and Hedden v. Western Union Telegraph Co., 93 Ga. App. 226 ( 91 S.E.2d 193). It will be noted that those cases have facts entirely different from the facts in the instant case and rest on entirely different principles of law. A reading of those cases will show that the facts show various situations where a party was unjustly enriched at the expense of another. Such is not the case insofar as the defendant here is concerned. It is our opinion that the defendant is not the holder of money to which the plaintiff here is entitled. For the defendant to hold such money unjustly would, of course, entitle the plaintiff to recover under the principle of law of money had and received. The pleadings do not show a special endorsement, but show an endorsement in blank. The plaintiff does not show the back side of the check in question as an exhibit or part of the petition. This leaves us with the pleadings showing that the check was a negotiable instrument. See the following applicable sections: Code §§ 14-201, 14-208, 14-209, 14-405 and 14-1703. The record does not show a restricted endorsement and since the instrument was payable to bearer, we can not see that the defendant should be forced to protect the plaintiff. The plaintiff was guilty of laches in releasing the check without a restricted endorsement so as to protect her own interest.
The trial court did not err in sustaining the general demurrer to the petition as amended.
Judgment affirmed. Townsend and Carlisle, JJ., concur.