Opinion
7 Div. 502.
April 9, 1929. Rehearing Denied May 14, 1929.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Action in assumpsit by G. M. Hardy against the First National Bank of Jacksonville. From a judgment for defendant, plaintiff appeals. Affirmed.
Certiorari denied by Supreme Court in Hardy v. First Nat. Bank of Jacksonville, Ala., 219 Ala. 435, 122 So. 702.
S.W. Tate, of Anniston, for appellant.
Notice by bank to its depositor that his claim will not be paid renders a demand unnecessary. Farmers' Mechanics' Bank v. Planters' Bank, 10 Gill J. (Md.) 422; Delahunty v. Cent. Nat. Bank, 37 App. Div. 434, 56 N.Y. S. 39; Chemical Nat. Bank v. Bailey, 12 Blatch. 480, Fed. Cas. No. 2635; Bank of Missouri v. Benoist, 10 Mo. 520; Miller v. Western Nat. Bank, 172 Pa. 197, 33 A. 684; McDuffee v. Collins, 117 Ala. 487, 23 So. 45; Ex parte First Nat. Bank of Montgomery, 206 Ala. 394, 90 So. 340. The rule requiring that, before one can put a bank in default about a deposit he must make demand, applies only to general depositors in a bank, and not where an amount was to be paid over to a party after payment of a certain paper. Tobias v. Morris, 126 Ala. 535, 28 So. 517.
Merrill Jones, of Anniston, for appellee.
In an action to recover a bank deposit, a demand for payment must be alleged and proved. Ex parte First Nat. Bank of Montgomery, 206 Ala. 394, 90 So. 340; Tobias v. Morris, 126 Ala. 535, 28 So. 517.
This was a suit by appellant, for money "had and received" for his use, against appellee.
In the view we take of the case, it is only necessary to say, by way of explanation of our holding, that the essential facts are, substantially, that appellee held a mortgage upon some lands of appellant; appellant concluded a sale of the lands, executed a deed to the purchaser, brought the deed to appellee bank where it was left, and that there was an agreement or understanding that, so soon as the purchase money was paid to appellee, it would "take out" the amount due it by appellant, under the mortgage, and either pay to appellant, or pass to appellant's credit, any balance remaining.
The whole testimony shows clearly that, under the arrangement that was made and that existed, appellee was within its rights in passing the above-mentioned "balance" to appellant's credit. And the testimony is without dispute that it did so.
The moment this was done, the relation between appellant and appellee became that of creditor and debtor in the sense discussed in the opinion in Ex parte First National Bank of Montgomery (First Nat. Bank of Montgomery v. Williams), 206 Ala. 394, 90 So. 340. And, before appellant could maintain successfully this suit, it was necessary, under the authority just mentioned, that he both aver and prove a "demand," the same made in the way therein pointed out as appropriate, for the money in question. In the testimony in this case there is nothing tending to show such a "demand"; hence the trial court properly gave at appellee's request the general affirmative charge in its favor.
It might be added that we do not think the testimony of appellee's former cashier — not, at the time of testifying, in appellee's employ — as to what the appellee would or would not have done had the "demand" been made, weighs against our holding. There was no testimony tending to show any "refusal" of the appellee, or other denial of liability which would excuse appellant from making the demand.
The other questions, in the view we have taken, seem unimportant, and will not be discussed.
The judgment is affirmed.
Affirmed.