Hooper v. Herring

BROWN, J.

(1-5) The statute provides, when a negotiable instrument is dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged. “The notice may be given by or on behalf of the holder or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom the notice is given,” and the notice may be given by an agent in his own name or the name of any party entitled to give the notice, whether that party is the agent’s principal or not; and the notice, when so given, inures to the benefit of all subsequent holders or prior parties who have a right of recourse against the party to whom it is given. — Acts Special Session 1909, p. 141, §§ 89-92.

While protest of such instrument, except in the case of foreign bills of exchange, is not essential to avoid a discharge of *460 persons secondarily liable — notice of dishonor being sufficient to that end — yet protest may be made thereof, and serves all the purposes of notice of dishonor given under the statute. — Acts Special Session 1909, § 118. Protest may be made by a commercial notary at the instance of - any person authorized to receive payment. — 7 Cyc. 1054 (XII, B, 3, a [H]) ; Chitty on Bills, p. 373; Edward on Bills & Notes, p. 833; 5 Cyc. 509, note 95. The evidence shows without dispute that protest of the check was made by the notary at the instance of A. B. Hooper, cashier of the defendant’s bank, who had the check in his possession at the time, and delivered it to the notary with the request that he protest it; and the evidence further shows that the notary received the check from said Hooper and made protest thereof, giving notice of its dishonor and protest to the drawer and all indorsers, and made proper certificates under his hand and official seal, to the effect that said check had been delivered to him by J. F. Hooper, banker, requiring that said check be presented and payment thereof demanded, and, in case of refusal of payment, that protest thereof be made, and “whereupon, at the request of aforesaid, I, the said notary, did present said check to said J. F. Hooper, banker, who refused payment for reason of insufficient funds.”

The notary had authority to receive said check and demand payment thereof (Code 1907, § 5166), and the fact that the check was in the possession of A. B. Hooper was evidence of his agency of the holder to present it for protest. —Eason v. Isbell, 42 Ala. 456 ; 7 Cyc. 1003 (X, F, 1), 1004 X, F, 2). After Hooper delivered the check to the notary for the purpose of making protest, his agency for the holder of the check was at an end. The undisputed evidence shows that said Hooper was the cashier of the bank, and as such had authority to refuse payment of the check so as to bind the banker, and presentment and demand for payment was properly made to him by the notary. —Crenshaw v. McKiernan, Minor, 295; 7 Cyc. 1001 (X, E, 2). The fact that the check was in the possession of the cashier of the bank on which it was drawn was evidence that it was received and presented for payment in due course, and no further formal demand for payment was necessary. — 7 Cyc. 996 (K. D, 3). It is elementary that the law does not require a useless thing, and in the face of the evidence in this case that the bank had received the check in due course of business, as the jury had a right to find, *461 and that the cashier of the bank had delivered it to the notary for protest for non-payment, further presentation and demand would be a useless form, and was wholly unnecessary.

(6) Another principle operates to cut the defendant off from disputing the fact of proper presentation and demand for payment, followed by dishonor. It is not disputed that A. B. Hooper, acting as cashier and agent of the banker, delivered the check to the notary public to be protested, and that the protest thereof was made and notice given at the instance of the defendant, on the assumption that the check had been properly presented and payment thereof refused. This being true, the banker, when being sued on the belief that the protest of the check was proper,' is in no position to dispute the authority or jurisdiction of the notary to make the protest, give the necessary notice, and certify to these facts under his hand and official seal, when the rights of third parties who have been led to accept the protest as proper and act thereon have intervened. —Thygh v. Dolan, 95 Ala. 269 , 10 South. 837 ; Wefel v. Stillman, 151 Ala. 249 , 44 South. 203 ; Herman on Estoppel, § 469.

(7, 9) The certificate of the notary under seal, accompanying the check, and the notices were properly admitted in evidence as showing demand on the defendant for payment and dishonor of the check. The check having been dishonored and protested, the drawer, the plaintiff in this case, had the right to intervene and pay it to protect his honor (Acts Special Session 1909, § 171), and the fact that the check had been returned to him through other channels than the bank had a tendency to show that he had so protected the check. The fact that the check was returned to the drawer by the person in whose favor it was drawn was admissible as tending to show that the plaintiff had! suffered some damage.

“A trader who gives a check to his creditor upon a bank at which he has funds is almost necessarily injured in his credit by the dishonor of the check, for it is a slur upon it of a similar character to that which is caused by the utterance of slander throwing doubt upon his solvency. In both cases he is allowed to recover substantial damages without proving any special damages.” —Henderson v. Bank of Hamilton, 25 Ont. Rep. 643; Atlantic National Bank v. Davis, 96 Ga. 334 , 23 S. E. 190 , 51 Am. St. Rep. 139 ; Schaffner v. Ehrman, 139 Ill. 109 , 28 N. E. 917 , 15 L. R. A. 134, 32 Am. Rep. 192 ; 5 Cyc. 535 (C).

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(10) We are not able to say that the statement of the witness Herring, “I sold it to him at 8% in round lots,” was a statement of a conclusion of the witness. The question to which this answer was responsive clearly called for a pertinent fact — the terms of the sale — and, for all that appears from the record, the terms “in round lots” may have a definite meaning in the parlance of cotton dealers, which proper cross-examination would have disclosed. The motion to exclude this statement was properly overruled.

(11) One question of fact in the case was as to the correctness of weights of the cotton in controversy. The first weights appear to have been procured by the plaintiff at the Albertville warehouse and furnished by him to the defendant as a basis for the deposits entered to plaintiff’s credit on the books of the bank. There was a discrepancy between these weights and the weights furnished by McFadden Bros., of Birmingham, to whom the cotton was sold by defendant. Taking these discrepancies in the weights of the cotton as a basis, the memorandum charges on plaintiff’s account on the books of the bank were made by the defendant. The justness and correctness of these charges is the litigated fact in this case. It appears that the Albertville warehouse belonged to a corporation styled in the record “The Warehouse Company;” that the warehouse was not run by the company, but was run under lease by certain merchants of the town, and was managed by one Wallace for them. The court, over the objection of the defendant seasonably made, allowed the plaintiff to show by the witness A. B. Hooper that the defendant was a stockholder in the warehouse company, owning one-fourth of the stock of the corporation. This was a collateral fact, having no connection with the question at issue and no legitimate tendency to shed light thereon; yet it was calculated to prejudice the defendant in the minds of the jury. In admitting this evidence, the court committed reversible error. —Orr v. Stewart, 13 Ala. App. 542 , 69 South. 649 ; Dothan Grocery Co. v. White Bros., infra, 69 South. 992 .

(12-14) Charge A given at the request of the plaintiff does not deal with the burden or measure of proof, but with the substantive law of the case and the measure of damages, and is not subject to the criticism offered in appellant’s brief. The rule of liability sustained by the weight of authority is thus stated: “If the bank neglects or refuses to pay on the order of a depositor *463 when the latter has sufficient funds on deposit and no other good excuse exists, the depositor can maintain an action against the bank for the money, and is entitled to recover substantial damages for such refusal.”.—5 Cyc. 535 (II, E, 10, a, [VII], [C], [1]). .

This charge ignores the contention of the defendant that the weights of the cotton furnished by the plaintiff, on the basis of which credit was given on the books of the bank, were erroneous, and that the grade of some of the cotton was inferior to that which the plaintiff sold the defendant, and should have been refused. The evidence shows that when cotton was purchased by the defendant from the plaintiff, no check or cash was given in payment, but defendant merely entered a credit on the books of the bank for the proceeds as based on weights furnished by the plaintiff; and defendant adduced evidence tending to show that plaintiff agreed and authorized the defendant to charge back any difference in the price of the cotton resulting from discrepancy between the Birmingham weights and weights furnished by plaintiff. If the defendant’s contention that the weights furnished by the plaintiff were erroneous was sustained by the evidence, the amounts entered to the credit of the plaintiff were in excess of that to which he was entitled; and, although the books of the bank prima, facie may have shown, aside from such charges, that there was sufficient money on deposit to meet the check, these facts afforded defendant a good excuse to refuse payment of the check, unless there was enough to pay the check, over and above the amount represented by such discrepancies.— Birmingham National Bank v. Meyer, 104 Ala. 641 , 16 South. 520 , 5 Cyc. 550. This charge also ignored the issues presented by defendant’s plea 5. Charge B embodied a general principal of law applicable to this case.

(15) The presentation of the check and the refusal of the defendant to pay it was sufficient demand to authorize the action against the bank. —Tobias v. Josiah Morris & Mo., 126 Ala. 535 , 28 South. 517 .

(16) The principles discussed above justify the refusal of the affirmative charge as to all the counts and as to the separate counts, and charges 2 and 5.

(17) If the contract between the parties contemplated the delivery of white cotton only, and the plaintiff delivered “blue cotton,” it was not a compliance with the contract, and no obliga *464 tion rested on the defendant to accept “blue cotton.” However, if he accepted “blue cotton,” he would be liable for the reasonable market price of “blue cotton,” unless he expressly agreed to pay the price of white cotton, or accepted, the “blue cotton” in fulfillment of the contract.

Charges 10 and 13 were properly refused.

(18) Charge 11 was argumentative.

(19) Charge 12, if not otherwise objectionable, was abstract.

The sufficiency of the complaint was settled on the former appeal. —Hooper v. Herring, 9 Ala. App. 292 , 63 South. 785 .

We have considered all assignments of error insisted upon.

For the errors above indicated, the judgment is reversed.

Reversed and remanded.