Birmingham Nat. Bank v. Bradley

• Decision Date: 01 May 1894
• Citation: 15 So. 440,103 Ala. 109
• Parties: BIRMINGHAM NAT. BANK v. BRADLEY.
• Court: Alabama Supreme Court

15 So. 440

103 Ala. 109

BIRMINGHAM NAT. BANK v. BRADLEY.

Supreme Court of Alabama

May 1, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by the Birmingham National Bank against John G. Bradley to recover money paid by plaintiff to defendant on a forged check. From a judgment for defendant, plaintiff appeals. Reversed.

On account of the prolixity of the pleadings, there will only be set out in this statement those on which issue was joined and those to which the rulings of the circuit court were adverse to the appellant. The complaint contained six counts. As amended, the first and second counts were as follows "(1) The plaintiff claims of the defendant the sum of $4,000, with interest from the 23d of February, 1892, due by defendant to plaintiff on a check or draft, in words and figures as follows: 'Duplicate unpaid. No. 156,597. The Gate City National Bank of Atlanta. 2/23/1892. Pay to the order of John G. Bradley four thousand dollars. A. W. Hill V. P. To National Park Bank, New York,'-indorsed by John G. Bradley. Plaintiff avers that on, to wit, the 24th day of February, 1892, defendant indorsed said draft or check to plaintiff, and received from plaintiff the sum of $4,000 in cash therefor. Plaintiff avers that said draft or check had been altered or raised after the issue thereof, and before the indorsement thereof by defendant to plaintiff, without the knowledge or consent of the Gate City National Bank of Atlanta, from $2 to $4,000; and after the issue thereof, and before indorsement thereof by defendant to plaintiff, and without the knowledge or consent of the Gate City National Bank of Atlanta, the name James Fix, originally named as payee in said draft, was changed to the name John G. Bradley and also the figures $4,000 were punched or cut in said draft or check; and plaintiff avers that it paid said sum of $4,000 on said draft to defendant in ignorance of said alterations or changes in said draft or check. Plaintiff avers that it immediately forwarded said check or draft to the drawee, the National Park Bank, for collection, and said National Park Bank, drawee, and said Gate City National Bank of Atlanta the drawer of said draft or check, have refused to pay the same to plaintiff and disclaimed all liability thereon. Plaintiff further avers that it informed defendant of said alteration or raising in said draft or check as soon as it was informed of the fact. (2) Plaintiff claims of defendant the further sum of $4,000, with interest from, to wit, the 23d day of February, 1892, due by defendant to plaintiff on a certain draft or check, in words and figures as follows 'Duplicate unpaid. No. 156,957. The Gate City National Bank of Atlanta. 2/23/1892. Pay to order of John G. Bradley, $4,000.00 (four thousand _____ dollars). A. W. Hill, V. P. To National Park Bank, New York.' Plaintiff avers that on, to wit, the 24th day of February, 1892, defendant indorsed said check or draft to plaintiff, and received the sum of $4,000 in cash from plaintiff therefor; and plaintiff avers that said draft had been altered or raised after the issue thereof, and before the indorsement thereof by defendant to plaintiff, and without the knowledge or consent of said Gate City National Bank of Atlanta, from $2 to $4,000; and after issue thereof, and before the indorsement thereof by defendant to plaintiff, and without the knowledge and consent of the Gate City National Bank of Atlanta, the name James Fix, originally named as payee in said draft, was changed to the name John G. Bradley, and also the figures $4,000 were punched or cut in said draft or check; and plaintiff paid said sum of $4,000 to defendant on said draft or check in ignorance of said alterations or changes. Plaintiff avers that it immediately forwarded said check or draft to the National Park Bank, indorsed by plaintiff for collection, and said National Park Bank credited said draft or check to plaintiff; but, finding out immediately afterwards that said check or draft had been altered or changed, said National Park Bank charged the same against plaintiff, and deducted the same from certain funds of plaintiff in the custody of said National Park Bank. Plaintiff further avers that, immediately on being informed of said raising or alteration in said draft or check, it notified defendant. Plaintiff further avers that said National Park Bank, the drawee, and said Gate City National Bank of Atlanta, the drawer, refused to pay said check or draft, and disclaimed all liability thereon." The third, fourth, fifth, and sixth counts of the complaint were the common counts for money had and received, money paid at the request of the defendant, money loaned by the plaintiff to the defendant, and on stated account. To the third, fourth, fifth, and sixth counts of the complaint the defendant pleaded the general issue. The court sustained the plaintiff's demurrers to the fourth, fifth, sixth, seventh, ninth, tenth, twelfth, and thirteenth pleas of the defendant. The eleventh plea of the defendant was withdrawn. The first and second pleas of the defendant to the complaint, and to each count separately and severally, were the general issue. The third plea was as follows: "That the sum or sums of money therein claimed to be due plaintiff have been paid to plaintiff in full before the commencement of this suit." The eighth plea was as follows: "Comes the defendant, and, for further answer to said complaint, says that said check had been paid to the Birmingham National Bank before the institution of this suit." To the third and eighth pleas the plaintiff demurred, on the ground that said pleas do not allege that payment was made by defendant or any one authorized to make such payment. This demurrer was overruled, whereupon the plaintiff filed its replications to the third and eighth pleas as follows: "(1) That he joins issue on said pleas; (2) that said alleged payment consisted in a credit given plaintiff by said National Park Bank for the amount of said check on receipt thereof. Plaintiff avers that said draft or check was raised or altered as set out in first and second counts of complaint, and that, as soon as said National Park Bank was informed that said check or draft had been altered or raised, it charged the same back to the account of said Birmingham National Bank, and returned it to the Birmingham National Bank. (3) For further replication to said third and eighth pleas, plaintiff says: They aver the same facts as in the second replication, and that, with full knowledge of said facts, defendant ratified the same, and promised said Birmingham National Bank to repay to it the sum of four thousand dollars paid out on said check or draft. (4) For further replication, plaintiff further says: They aver the same facts in the second replication, and say that, with full knowledge of such facts, said defendant ratified said action of said Birmingham National Bank and said National Park Bank, and promised said National Park Bank to repay to it said sum of four thousand ($4,000) dollars paid out to him on said check or draft, and, by reason thereof, said Birmingham National Bank retained said check or draft, returned as aforesaid by the Birmingham National Bank to said defendant. By reason of the said action in ratifying of charge and retention of said draft, defendant is estopped from setting upon said alleged payment." The defendant demurred to these respective replications, which demurrers were overruled, and thereupon the defendant filed the following rejoinder: "(1) That the National Park Bank of New York, after paying said check and passing it to the credit of the Birmingham National Bank on its books, charged it off without the consent of the Birmingham National Bank, and that said action on the part of the National Park Bank did not rescind or cancel the payment already made. (2) That the act of the National Park Bank in canceling and rescinding on its books the credit given the Birmingham National Bank when said Park Bank received daily notices of the number and amounts of the drafts drawn on it by the Gate City National Bank, where they amounted to more than one thousand dollars, and without notice on the day of payment that the four thousand dollar check or draft described in the complaint had been issued, said National Park Bank negligently paid said check or draft, and telegraphed to the Birmingham National Bank that said check had been paid; (3) that the defendant has been greatly damaged by the negligence of the National Park Bank in notifying defendant through the Birmingham National Bank that said check had been paid, when said National Park Bank had not received the usual notice from the Gate City National Bank of the issuance of said check by it, and that thereby the National Park Bank is estopped from denying the payment of said check to the Birmingham National Bank." The plaintiff demurred to each of these rejoinders of the defendant to the replications of defendant to the third and eighth pleas, and its demurrer to the first and third rejoinders was sustained. The plaintiff demurred to the second rejoinder to the replication of plaintiff to the third and eighth pleas, upon the following grounds: (1) Because it is not alleged that...