Opinion
38826.
DECIDED JULY 27, 1961.
Complaint. Fulton Civil Court. Before Judge Henson.
Greene, Neely, Buckley DeRieux, John D. Jones, Sanders Marshall, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, D. F. McClatchey, Barry Phillips, contra.
Alston, Sibley, Miller, Spann Shackelford, Moise, Post Gardner, for parties at interest.
Counts 1 and 2 of the plaintiff's petition each set forth a cause of action against the defendant and were not subject to general demurrer, but counts 3 and 4 failed to set forth a cause of action and the general demurrer to each of these counts of the plaintiff's petition was properly sustained.
DECIDED JULY 27, 1961.
On October 3, 1958, Henry M. Tull sued Fulton National Bank of Atlanta to recover $2,400 allegedly owed the plaintiff by the defendant from a transaction surrounding a check issued by the plaintiff and made payable to American Lease Land Exchange. After various demurrers and amendments to the original petition the plaintiff, on June 27, 1960, filed his amended petition, in four counts, and on February 3, 1961, the trial court sustained the defendant's general demurrers to each count of the amended petition and it is to this judgment that the plaintiff now excepts.
The amended petition, excluding immaterial parts, alleged: "Count One. 1. Defendant herein is Fulton National Bank of Atlanta, a banking corporation organized under the laws of the United States, with its principal place of doing business located in Atlanta, Fulton County, Georgia.
"2. Defendant is indebted to plaintiff in the amount of $2,400.00 plus interest at the legal rate of 7% from July 21, 1958, down to the date of trial as will appear more fully from the facts hereinafter set forth.
"3. On or about Saturday, July 19, 1958, plaintiff did issue his personal check in the sum of $2,400.00 to a man representing himself as a field agent for American Lease Land Exchange, said check being made payable to the order of American Lease Land Exchange.
"4. Said check has been honored and paid by defendant and defendant has charged the same against plaintiff's account and accordingly deducted therefrom the sum of $2,400.00.
"5. The proceeds of said check were not paid by defendant to American Lease Land Exchange or to anyone authorized by said American Lease Land Exchange to receive the same but rather were paid contrary to the tenor of said check.
"6. Plaintiff has demanded that his account be recredited by defendant with the $2,400.00 wrongfully deducted therefrom by defendant, which demand defendant has refused.
"Count Two. 1. Plaintiff incorporates by reference herein, so as to make the same a part hereof, the allegations of paragraphs 1, 2 and 3 of count one of said petition.
"2. On Monday morning, July 21, 1958, plaintiff did order and direct defendant to stop payment on the said check, which stop payment order was accepted by defendant acting by and through its agent, the name of said agent being unknown to plaintiff but well known to defendant.
"3. Defendant did thereafter, at a time unknown to plaintiff but well known to defendant, negligently fail to stop payment on said check as directed, but did rather honor and pay the same.
"4. Although plaintiff has made demand upon defendant to recredit his account with the $2,400.00 deducted therefrom in payment of said check, contrary to plaintiff's express orders as aforesaid, defendant has wholly failed and refused to recredit plaintiff's account.
"Count Three. 1. Plaintiff incorporates by reference herein, so as to make the same a part thereof, the allegations of paragraphs 1, 2 and 3 of count one of said petition.
"2. On Monday Morning, July 21, 1958, plaintiff did issue to defendant, at approximately 11:00 a. m. o'clock a written order to stop payment on said check, which stop payment order was accepted by defendant acting by and through its agent, the name of said agent being unknown to plaintiff but well known to defendant.
"3. On the afternoon of July 21, 1958, defendant, acting by and through a Mrs. Naples, one of its agents, telephoned plaintiff and stated to him that prior to defendant's receipt of plaintiff's stop payment order, defendant had been presented with the said check of plaintiff, and had taken possession of the same, issuing a New York draft for it, which said agent referred to as `Chase check No. A33199 issued in lieu' of plaintiff's said check.
"4. Plaintiff thereupon demanded that defendant stop payment on the said New York draft, issued in lieu of plaintiff's check, but defendant informed plaintiff that this was not possible.
"5. As a matter of fact, said `Chase check No. A33199' had not been presented for payment or otherwise transferred or negotiated on July 21, 1958, when plaintiff demanded that defendant stop payment upon said check, and said check was not cashed until July 22, 1958.
"6. Defendant could have stopped payment on its Chase check No. A33199 on July 21, 1958, when plaintiff so demanded.
"7. Said `Chase check No. A33199' was presented for payment on July 22, 1958, at the First National Bank in Birmingham, Alabama, at which time the same was cashed by some party or parties whose name is unknown to plaintiff but well known to defendant, and defendant did honor said check when the same was presented to it for payment by First National Bank in Birmingham, Alabama, or by the assignee of said First National Bank of Birmingham, Alabama, on a date subsequent to July 22, 1958, the exact date being unknown to plaintiff but well known to defendant.
"8. Although defendant thus wrongfully refused to obey plaintiff's stop order as aforesaid on the afternoon of July 21, 1958, defendant has failed and refused to recredit the $2,400.00 wrongfully deducted from plaintiff's account pursuant to plaintiff's demand that defendant do so.
"Count Four. 1. Plaintiff incorporates by reference the allegations of paragraphs 1, 2 and 3 of count one of his petition so as to make the same a part hereof.
"2. On or about Saturday, July 19, 1958, plaintiff issued his personal check in the amount of $2,400.00 to a man allegedly named John W. Johnson, who purported to be a field agent for American Lease Land Exchange, said check being made payable to the order of American Lease Land Exchange. Said check was drawn on defendant, and was so drawn in payment of certain oil leases which American Lease Land Exchange was to convey to plaintiff.
"3. Plaintiff's said check was obtained from him by fraud, artifice and under false pretenses in that said check was drawn for and in exchange of certain oil leases which the said American Lease Land Exchange was to convey to plaintiff, as aforesaid, whereas the said oil leases to be conveyed were not at said time either owned by the American Lease Land Exchange or subject to sale by the American Lease Land Exchange, and from and after the date plaintiff delivered his said check to John W. Johnson, purportedly acting for said American Lease Land Exchange, he has never further been contacted by either of said parties, and has never received any oil leases whatsoever from them or either of them.
"4. Although plaintiff's said check has never been endorsed by said American Lease Land Exchange or anyone authorized by American Lease Land Exchange to endorse the same, nevertheless said check was honored and paid by defendant.
"5. Although plaintiff has advised defendant of the fact that said check was obtained by fraud and deceit and has accordingly demanded that his account be recredited with the $2,400.00 wrongfully deducted therefrom at the time said check was paid by defendant, defendant has failed and refused to so recredit plaintiff's account."
The defendant contends in support of its general demurrers to the plaintiff's petition that the plaintiff failed to give the written notice required by the act of 1945 (Ga. L. 1945, p. 228; Code Ann. § 13-2052), within one year of a forged endorsement.
The petition does not allege that there was a forged endorsement, but even assuming, but not deciding, that such a notice must be given within one year even when a check is paid by a bank without an endorsement, such act does not provide that a written notice must be given as a prerequisite to the filing of an action if such action is filed within one year from the date of such payment on the forged endorsement. The present action was filed within ninety days of the date of the check.
While count one is loosely drawn, and would probably have been subject to special demurrer it was not subject to the defendant's general demurrer.
2. Count two alleges that after the plaintiff had ordered payment on the check stopped the defendant paid the same in violation of such stop payment order. In 1916 the Supreme Court in Bank of Hamilton v. Williams, 146 Ga. 96 ( 90 S.E. 718), said, "The drawer of an ordinary check can revoke it at any time before the bank has paid it or committed itself to pay it; the bank is bound by notice of such revocation, orally or in writing, and liable to the drawer to the amount thereafter paid on the check." In 1927 the General Assembly (Ga. L. 1927, pp. 195, 204; Code § 13-2050), provided that all renewals of stop payment orders must be in writing and that they must be renewed every ninety days, but it did not change or modify the holding by the Supreme Court, supra, that the original stop payment order could be given orally or in writing.
The present case was brought within ninety days from the date the check was issued and so the contention that the failure to allege that the "stop payment" order was in writing or that it had been renewed in writing within ninety days prior to the time when the check was allegedly paid makes such petition subject to general demurrer is without merit.
This count, like the first count, is loosely drawn and would probably be subject to proper special demurrers but such questions are not presented for decision. The allegations claimed by the defendant to be conclusions are actually allegations of ultimate fact and, on general demurrer, must be accepted as true. The trial court erred in sustaining the general demurrer to this count of the plaintiff's petition.
3. Count three of plaintiff's petition is not based on the premise that the defendant paid the plaintiff's check after being directed not to pay the same but such count is premised on the contention that the defendant could have, with impunity, stopped payment on the check or draft drawn by the defendant on the New York bank.
Without deciding whether the defendant bank could have stopped payment on its check after the plaintiff's demand, the further allegations of this count of the petition show that the defendant's check was "cashed" at a bank in Birmingham, Alabama, and eventually paid by the defendant. The bank in Birmingham, Alabama, prima facie became a holder in due course of the defendant's check and, in the absence of allegations to show that such Birmingham bank was not a holder in due course, such count of the petition failed, and the general demurrer to such count was properly sustained.
4. Count four of the petition alleges that the consideration for which the plaintiff issued the check failed and, although plaintiff's check was not indorsed by anyone, same was "honored and paid by defendant." Construing the allegations of count four against the pleader, as must be done on demurrer, the conclusion is demanded that the check was paid in compliance with the instructions of the maker thereof. Accordingly, count four of the petition was subject to general demurrer and the trial court did not err in sustaining same.
Judgment reversed in part and affirmed in part. Carlisle, P. J., and Eberhardt, J., concur.