As a general rule, a check is subject to revocation by the drawer at any time before it is accepted or paid. If a bank pays a check after it has been notified to stop payment, it pays on its own responsibility and will not be permitted to charge the amount of the check against the depositor's account. Pease Dwyer v. State National Bank, 114 Tenn. 693, 88 S.W. 172; Third Nat. Bank in Nashville v. Carver, Tenn. App., 218 S.W.2d 66; 7 Am. Jur., Banks, Section 607, p. 441; 9 C.J.S., Banks and Banking, Sections 344, page 692, and 353-(c), page 704; Patton's Digest of Legal Opinions, 3463. It is contended by the defendant that its main office became an innocent holder of the check for value with right to recover thereon from the plaintiff by reason of his stopping payment; that the Rossville Branch became subrogated upon acquisition of the check for value, which right of subrogation the defendant became entitled to assert against the plaintiff by way of equitable set-off.
Courts still may not render advisory opinions based on hypothetical facts." Id. at 838 (citing Goetz v. Smith, 278 S.W. 417, 418 (Tenn. 1925) and Third Nat'l Bank v. Carver, 218 S.W.2d 66, 69 (Term. 1948)).
Knaffl v. Knoxville Banking & Trust Co., 133 Tenn. 655, 182 S. W. 232, citing Columbia Finance & Trust Co. v. Kentucky Union Railway Co., (C. A. 6) 60 F. 794. See also Third National Bank in Nashville v. Carver, 31 Tenn. App. 520, 218 S. W. 2d 66; United States v. National Surety Co., 254 U. S. 73; Maryland Casualty Co. v. Southern Pac. Co., (C. A. 9) 119 F. 2d 672; National Surety Co. v. Salt Lake County, (C. A. 8) 5 F. 2d 34. E. A. Roberts, 36 B. T. A. 549, is not in point, for under the Alabama statutes applicable in that case the endorser was entitled to commence an action against the principal immediately upon making the payment. The $53,000 payment made by petitioner to the bank, however, is deductible as a loss under section 23(e) of the 1939 Code.
Courts still may not render advisory opinions based on hypothetical facts. Third Nat'l Bank v. Carver, 31 Tenn.App. 520, 218 S.W.2d 66, 69 (1948). The justiciability doctrines of standing, ripeness, mootness, and political question continue as viable defenses.
Gaston Bd. of Realtors v. Harrison, supra; McKinnon v. Lane, 285 S.W.2d 269 (Tex. Civ. App. 1955). See Third Nat. Bank in Nashville v. Carver, 31 Tenn. App. 520, 218 S.W.2d 66 (1948) (declaratory judgment act does not enable courts to make declaration with regard to claim which complainant merely fears defendant may assert in future). Contra N.J. Home Builders Ass'n v. Div. on Civil Rights, 81 N.J. Super. 243, 195 A.2d 318 (1963), aff'd sub nom.
With the defendants' answer they include the grounds on which they had relied in their demurrer and these grounds were subject to review by the Court of Appeals and now by us. Judge Felts in his opinion in Third National Bank in Nashville v. Carter, 31 Tenn. App. 520, 218 S.W.2d 66, said: "It is said for the bank that the Chancellor overruled the demurrers without granting appellants leave to rely upon the demurrers in their answers and that this ruling was final and is not now open to review.
" 204 Tenn. at 460, 321 S.W.2d at 826. In support of the demurrer the defendant relies upon Third National Bank in Nashville v. Carver, 31 Tenn. App. 520, 218 S.W.2d 66. In that case, the bank filed a bill for declaratory judgment after paying a check on which payment had been ordered stopped over the telephone.
Michie, supra, at p. 12; 9 C.J.S., supra. Cases supporting the application of agency rules in the bank-depositor relation under certain circumstances are: Crawford v. West Side Bank, 100 N.Y. 50, 2 N.E. 881; Third Nat. Bank in Nashville v. Carver, 31 Tenn. App. 520, 218 S.W.2d 66; Dalmatinsko, etc. v. First Union Trust and Savings Bank, 268 Ill. App.? 314; Selig v. Wunderlich Contracting Co., 160 Neb. 215, 69 N.W.2d 861; Bernhard v. Bank of America N.T. S.A. (Cal.App.) 114 P.2d 661. These cases deal with the liability of a bank for paying a forged or materially altered check.
This is the section wherein the Chancellor "may, in his discretion, allow an appeal * * *". The fact that he allowed twenty days for the filing of an answer also indicates that he did not consider his decree as final in the sense of the time within which an appeal, if at all, from his action must be taken. The question stated arose in Third National Bank v. Carver, 31 Tenn. App. 520, 525, 218 S.W.2d 66, 68, and was there settled by that Court in a manner which this Court thought, and thinks, correct. The Court ruled as follows:
At the time of the presentation of the cause to the Circuit Judge, when no surplus fees were in existence, their disposition presented no justiciable issue. This Court has frequently said under such circumstances, no declaration will be made. Coleman v. Henry, 184 Tenn. 550, 201 S.W.2d 686; Jared v. Fitzgerald, 183 Tenn. 682, 195 S.W.2d 1; Third Nat. Bank in Nashville v. Carver, 31 Tenn. App. 520, 218 S.W.2d 66. Since it was not until after the final decision in the former Circuit Court case, that Complainant knew that her salary as General Sessions Court clerk, was to be fixed by the Anti-Fee Bill, rather than by the Private Act, and further, since at the time of the filing of the Circuit Court bill, the clerk had no way of foreseeing what the fees of her office as General Sessions Court clerk would be, the question of the application of such fees to a deficiency prior to September 1, 1948, would have been premature, and no doubt assailed as such.