Commercial Bank v. Hall

Decision Date04 April 1957
Docket Number4 Div. 886
CourtAlabama Supreme Court

Albrittons & Rankin, Andalusia, for appellant.

A. R. Powell, Jr., and W. H. Baldwin, Andalusia, for appellees.

MERRILL, Justice.

This cause was tried by the circuit court without a jury under Count 5 of the complaint, in which appellees, L. F. and J. V. Hall, partners d/b/a Hall Tie & Timber Agency, sued appellant, The Commercial Bank at Andalusia, for $1,868.04 for paying a check for that amount after the Halls had filed a written stop payment order with the bank. The trial court entered judgment in favor of plaintiffs and the bank appealed.

The cause is here on an agreed stipulation of facts which, in short, are as follows:

The Halls' bank account was styled 'Hall Tie and Timber Agency' and either L. F. Hall or J. V. Hall could sign checks. On May 27, 1954, L. F. Hall issued a check on the account for $1,868.04, being payable to W. M. Avery. On May 29, 1954, J. V. Hall gave the bank a written stop payment order on said check. On June 9, 1954, W. M. Avery presented the check for payment and one of the tellers paid it. The bank did not debit the Hall account with the check until July 15, 1954.

When J. V. Hall wanted to stop payment on the check, he went to the bank, stated his business and was presented with a red bordered form furnished by the bank, and a stenographer employed by the bank filled it out for him. The stop payment order filed by Hall contained the following qualification:

'The undersigned, hereby agrees to hold the above bank harmless for said amount, as well as for expenses and costs, incurred by said bank through refusing payment of above check, and further agrees to hold said bank free of all liability should payment be made contrary to this request, if such payment occurs through inadvertence or accident only. Request for stop payment shall hold for only thirty days unless request is made in writing to continue same.'

The trial court, in sustaining a demurrer to a plea setting up this qualification, or release as we shall subsequently term it, held, in effect, that the release was void as being contrary to public policy.

Practically all the authorities cited infra hold that the drawer of an uncertified check has a legal right to stop payment thereof by giving a seasonable stop payment notice to the bank on which it is drawn, and, if the bank thereafter pays such check, it is liable therefor. That is the bank's common law liability and it grows out of the relationship of the parties, which is that of debtor and creditor. After receipt of a notice to stop payment, the bank pays at its peril. See also, Southern Bank & Trust Co. v. Whited, 25 Ala.App. 309, 145 So. 832; Bank of Moulton v. Rankin, 24 Ala.App. 110, 131 So. 450, certiorari denied 222 Ala. 188, 131 So. 454; Peoples Savings Bank & Trust Co. v. Lacy, 146 Ala. 688, reported in full 40 So. 346.

Appellant aptly states the major question in these words--'the primary point for consideration and decision in this case is the validity of that provision of the written stop payment order relieving drawee bank of all liability should payment be made through inadvertence or accident only.'

This question is one of first impression in this Court, and has been decided in only eight states. The first case was decided in 1920, in Tremont Trust Co. v. Burack, 235 Mass. 398, 126 N.E. 782, 9 A.L.R. 1067. It was there held that the consideration for the clause relieving the bank from its liability springs from the mercantile relation of the parties and the reciprocal rights and obligations which the law attaches to that relation. It further held that the provision was not void as against public policy, despite the fact that it, in effect, relieved the bank from liability for payment through the negligence of its employees. In 1926, the Court of Appeals of New York followed the Massachusetts case in Gaita v. Windsor Bank, 251 N.Y. 152, 167 N.E. 203. In 1932, the Indiana Appellate Court followed the Massachusetts and New York cases in Hodnick v. Fidelity Trust Co., 96 Ind.App. 342, 183 N.E. 488.

The first case to hold differently was Hiroshima v. Bank of Italy, 78 Cal.App. 362, 248 P. 947, decided in 1926. It was there held that such a provision relieving the bank against liability was void as against public policy. There appears to be some question as to the applicability of some California statutes to the question, but the issue was met squarely by the Ohio Supreme Court in 1948, in the case of Speroff v. First-Central Trust Co., 149 Ohio St. 415, 79 N.E.2d 119, 1 A.L.R.2d 1150. That court considered the cases previously decided on the point and held that the release was void, both on the ground of lack of consideration and as being against public policy. (An annotation on the subject is found in 1 A.L.R.2d 1155).

A year later, 1949, the question was presented to the Supreme Court of Errors of Connecticut. That court reviewed the cases on both sides of the question and held that the release was not supported by a consideration and was unenforceable. Having reached such a conclusion, it did not consider the question of whether it was void as against public policy. Calamita v. Tradesmens Nat. Bank, 135 Conn. 326, 64 A.2d 46.

In 1950, in Michaels v. First National Bank of Scranton, 73 Pa.Dist. & Co.R. 29, the court reached the same conclusion as that reached by the Connecticut court, but apparently without the benefit of that decision as it is not cited.

Then in 1951, the New Jersey Superior Court followed the Connecticut decision after reviewing the authorities in Reinhardt v. Passaic-Clifton Nat. Bank & Trust Co., 16 N.J.Super. 430, 84 A.2d 741, affirmed 9 N.J. 607, 89 A.2d 242.

We have carefully considered the cases on each side of the question and we have concluded that the better reasoning is found in those cases which hold the release void for the lack of consideration. Chief Justice Weygandt, speaking for the Ohio Supreme Court, in Speroff v. First-Central Trust Co., 149 Ohio St. 415, 79 N.E.2d 119, 122, 1 A.L.R.2d 1150, said:

'* * * The defendant bank was aware that a check 'is simply an order which may be countermanded and payment forbidden by the drawer any time before it is actually cashed or accepted' and that an order to stop payment may be either oral or in writing so long as it conveys to the bank a definite instruction to that effect. Under the reciprocal rights and obligations inherent in the relationship existing between a bank and its depositors, it was the duty of the defendant not to pay the check after receiving such an order from the plaintiff depositor. Hence, when the plaintiff was asked to sign a statement or release to the effect that the bank would not be held responsible if it should pay the check through inadvertency or oversight, this was something new--an element that concededly had not previously existed in their relationship. What benefit or consideration was received by the plaintiff as the promisor and what detriment was suffered by the defendant bank as the promisee as a result of the new statement or release? Clearly there was no compliance with either of these fundamental requirements as to a consideration. On the contrary, the plaintiff promisor thereby received no benefit but suffered a detriment, and the promisee suffered no detriment but received a benefit.

'Consequently the Court of Appeals was not in error in holding the purported release void for want of consideration. * * *'

We quote from Calamita v. Tradesmens Nat. Bank, 135 Conn. 326, 64 A.2d 46, 49:

'That brings us to the question whether the stipulations waiving liability were supported by any consideration. It was a part of the original contractual relation between the parties arising out of the keeping of the account in the bank that it would obey any stop orders on checks under penalty of damages should it fail in its duty in that regard. The stipulations in the request, if effective, would amount to a change in the contractual relationship between the parties by virtue of which the plaintiff surrendered certain rights. They would be unenforceable unless supported by a proper consideration. Novak v. Kurcon, 85 Conn. 534, 535, 84 A. 88; Carrano v. Shoor, 118 Conn. 86, 100, 171 A. 17. In the briefs of counsel it is pointed out that the bank had the right at any time to refuse to deal further with the plaintiff, and the fact that it continued his account is claimed to be a sufficient consideration for the...

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