Bank of Blountstown v. Cross

• Decision Date: 09 April 1938
• Parties: BANK OF BLOUNTSTOWN v. CROSS et al.
• Court: Florida Supreme Court

181 So. 390

132 Fla. 392

BANK OF BLOUNTSTOWN v. CROSS et al.

Florida Supreme Court, Division A.

April 9, 1938

Rehearing Denied June 6, 1938.

Error to Circuit Court, Calhoun County; Ira A. Hutchison, Judge.

Action by Mrs. Virgillia Cross and another against the Bank of Blountstown to recover the amount allegedly due because of the deposit of a check with the defendant bank. To review a judgment for plaintiffs, the defendant brings error.

Reversed and remanded.

ELLIS C.J., dissenting.

COUNSEL Marion B. Knight, of Blountstown, and Philip D Beall, of Pensacola, for plaintiff in error.

John H Carter and John H. Carter, Jr., both of Marianna, for defendants in error.

OPINION

BUFORD Justice.

Writ of error brings for review judgment in favor of the plaintiff against the defendant Bank of Blountstown, a corporation plaintiff in error here, on demurrer sustained to pleas to a special count of the declaration in the following language:

'For that the defendant, at the institution of this suit is indebted to the plaintiff, Mrs. Virgillia Cross, in the sum of $1459.85, with interest thereon at the legal rate from July 7, 1936, for money payable, towit: that on the 6th day of July, 1936, the plaintiff Virgillia Cross and C. T. Cross were the owners and holders of a certain check drawn on the defendant bank by one Jack Revell for the said sum of $1459.85, and then and there being desirous of collecting same the said C. T. Cross forthwith proceeded from Bristol, Florida, where he had received the check, to Blountstown, Florida, where the defendant bank was located and doing business, arriving there after the bank's customary banking hours, and got in touch with the cashier and met him at the banking office of the defendant bank, and presented the said check and inquired if it was good and payable; whereupon the said cashier assured the said Cross that it was, and caused the said Cross to endorse the same for payment, which he did in accordance with the cashier's instruction, and turned the check over to the cashier for deposit to the credit of the plaintiff Virgillia Cross, subject to check; that said cashier took the check and issued the bank's credit slip or deposit ticket to her for the amount of $1459.85, less $50.00 deducted for credit of W. J. Cross at her request, and a credit slip or deposit ticket was issued to him for the $50.00; and said cashier then and there delivered to the said C. T. Cross the bank's customary signature card to be filled out with the authorized signatures to be honored against said deposit, and also a check book on the defendant bank to be used in checking against the deposit. The credit slips or deposit tickets mentioned are attached hereto as Exhibits 'A' and 'B' and made a part of this count. The signature card mentioned, as filled out, it likewise attached as Exhibit 'C' and made a part of this count. That after the transaction had been thus closed on July 6th, the defendant on the following day attempted to rescind the transaction with the plaintiff and notified her that her account 'was cancelled out for the time being', assigning as a reason that O. M. Revell had come in that morning and stopped payment of the check.

'That defendant has refused to pay the plaintiff said money or any part thereof, wherefore plaintiff sues and claims damages under this count of $1600.00.'

The pleas to which demurrer was interposed and sustained were as follows:

'1. That it never was indebted in the manner and form alleged.

'2. That the transaction upon which the declaration is founded was that after banking hours of defendant, in the City of Blountstown, on July 6, 1936, and after the close of business for the pay, and at a time when the said banking business of said bank would not be resumed until 9 A.M. the following morning, the plaintiff delivered to the Cashier of said bank, a certain check drawn by Jack Revell, in the sum of One Thousand Four Hundred Fifty-nine and 85/100 Dollars, and received certain deposit slips, one for the sum of One Thousand Four Hundred Nine and 85/100 Dollars, being a deposit slip made in the name of the plaintiff and one in the sum of Fifty Dollars, being a deposit slip made in the name of W. J. Cross, upon the deposit slips forms of said bank, copy of which said deposit slips are hereto attached, made a part hereof and marked exhibits 'A' and 'B': that by the terms of said deposit slips it is provided that it (the Bank of Blountstown) may charge back any item at any time before final payment whether returned or not, also any item drawn on said bank not good at the close of business on day deposited. That said check and said deposit slips were accepted by said cashier with the understanding of the parties to the transaction that same would be handled in the regular course of business during banking hours upon the following day; that said check was drawn upon defendant; that prior to the beginning of banking hours of said bank of defendant on the following day, the drawer of said check stopped payment thereon, and that the said check was never deposited in said bank prior to the stoppage of payment thereof, nor entered upon the books of said bank.

'3. That the transaction upon which the declaration is founded was that after banking hours of defendant, in the City of Blountstown, on July 6th, 1936, and after the close of business for the day, and at a time when the said banking business of said bank would not be resumed until 9 o'clock the following morning, the plaintiff delivered to the Cashier of said bank, a certain check drawn by Jack Revell, in the sum of One Thousand and Four Hundred Forty-nine and 85/100 Dollars, and received certain deposit slips, one for the sum of one thousand four hundred nine and 95/100 dollars, being a deposit slip made in the name of plaintiff, and one in the sum of Fifty Dollars, being a deposit slip made in the name of W. J. Cross, upon the deposit slip forms of said bank, copy of which said deposit slips are hereto attached, made a part hereof and marked exhibits 'A' and 'B'; that by the terms of said deposit slips it is provided that it (the Bank of Blountstown) may charge back any item at any time before final payment whether returned or not, also any item drawn on said bank not good at the close of business on day deposited. That said check and said deposit slips were accepted by said Cashier with the understanding of the parties to the transaction that same would be handled in the regular course of business during banking hours upon the following day; that said check was drawn upon defendant; that prior to the beginning of the banking hours of said bank on the following day the drawer of said check stopped payment thereon; that said check drawn on this bank was not good at the beginning of business on the succeeding day or at the close of business on any day upon which same was deposited in said Bank.

'4. That the transaction relied upon as the basis for each count of the declaration is the alleged deposit of a certain check described in the bill of particulars to the declaration, claimed to have been deposited to the credit of the plaintiff in the sum of One Thousand Four Hundred Nine and 85/100 Dollars, and in the sum of Fifty Dollars to the credit of W. J. Cross; that the said check alleged was never deposited with or in the defendant bank to the credit of said parties as aforesaid.'

The amended plea was as follows:

'Defendant denies that its Cashier, at the time and place averred on July 6, 1936, advised or assured, C. T. Cross that the check averred in said court was good and payable on said 6th day of July, 1936; and avers the fact to be that on the said 6th day of July, 1936, defendant's Cashier was approached by said C. T. Cross, about four o'clock P.M., and that he could not advise him as to whether there were sufficient funds on hand to meet said check when properly presented, since the books of said bank were locked up; but that said Cross could leave said check with said Cashier to be deposited during banking hours on the succeeding day, July 7th 1936, said deposit to be subject to the usual terms and conditions on which deposits were received by said bank, and which said terms and conditions are set forth and described in exhibits 'A' and 'B,' to the declaration, one of which was and is:

"It may charge back any item at any time before final payment, whether returned or not, also any item drawn on this bank not good at the close of business on day deposited.'

'It denies that said Cashier caused said Cross to endorse said check for payment on the 6th day of July, 1936; it avers that said check was endorsed and delivered to said cashier to be deposited by him in accordance with the original deposit slips, duplicates of which are attached to the declaration, on the 7th day of July, 1936, the day said deposit slips are dated; and subject to the terms and conditions as set forth in said slip; that the said signature card attached to the declaration was never signed and returned to the said bank on the 6th day of July, 1936, nor on the 7th day of July, 1936; that no entries of any kind were made on the books of said bank nor was any account opened for Mrs. Virgillia Cross thereon on the 6th day of July 1936, and no deposit book or other writing given to her showing any deposit in said Bank on the 6th day of July, 1936; that upon the 7th day of July, 1936, prior to the beginning of

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