Hooper v. Herring

• Decision Date: 20 November 1913
• Citation: 63 So. 785,9 Ala.App. 292
• Parties: HOOPER v. HERRING.
• Court: Alabama Court of Appeals

63 So. 785

9 Ala.App. 292

HOOPER v. HERRING.

Court of Appeals of Alabama

November 20, 1913

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by R.E. Herring against J.F. Hooper. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Street, Isbell & Bradford, of Guntersville, for appellant.

John A. Lusk & Son and A.E. Hawkins, all of Albertville, for appellee.

WALKER P.J.

The complaint contained four counts, each of which asserted a breach of a duty imposed upon the defendant by a general deposit made by the plaintiff with him as a banker. Counts 1 and 2 were in assumpsit for the recovery of the amount on deposit; each alleging the defendant's failure and refusal on demand to pay the same. Counts 3 and 4 were in tort for the recovery of damages claimed for the defendant's alleged wrongful failure and refusal to pay the plaintiff's check as a depositor. The several counts may be regarded as based upon alleged breaches of duty "arising out of the same transaction, or relating to the same subject-matter," within the meaning of that expression as used in the statute (Code, § 5329) authorizing the joinder of actions ex delicto with actions ex contractu when there is such a relationship or connection between the several breaches of duty counted on. The subject-matter with reference to which the defendant was sought to be charged with liability by each of the counts was one general deposit made by the plaintiff with the defendant as a banker. Indeed it is a fair inference from the complaint as a whole that the claims asserted in its several counts arose out of the alleged transaction of the defendant in failing and refusing to accord to the plaintiff rights to which he as a depositor was entitled; that transaction being in the several counts disclosed under different aspects as constituting breaches of different duties owing by the defendant to the plaintiff. The conclusion is that the complaint shows that its several counts were such as the statute permits to be joined, and that it was not subject to demurrer on the ground that there was a misjoinder of counts. Code, § 5329; Western Railway of Ala. v. Hart et al., 160 Ala. 599, 49 So. 371.

It is insisted in the argument of the counsel for the appellant that counts 1 and 2, each of which averred in effect that the sum deposited by the plaintiff with the defendant was subject to the plaintiff's check or demand, were subject to demurrer on the ground that they were uncertain in failing to show whether such sum was payable only on presentation of a proper check or was also payable on a demand otherwise made. The form of averment adopted was appropriate to show the existence of the obligation which a banker incurs by the acceptance of a general deposit. By the acceptance of such a deposit the banker subjects himself to the obligation to pay on the order or demand of the depositor, and such order or demand may be given or made otherwise than by the presentation of a check. Tobias v. Josiah Morris &amp Co., 126 Ala. 535, 28 So. 517; First National Bank v. Hall et al., 119 Ala. 64, 24 So. 526. Neither of the counts in question was subject to demurrer because of any lack of certainty in its description of the obligation incurred by the defendant.

We are not to be expected to consider another ground which was assigned in the demurrers to counts 1 and 2 of the complaint when the only mention of it made in the argument of the counsel for the appellant is in an assertion that it was well taken. An assignment of error which is treated in this way by the party making it may be regarded as waived. Richardson et al. v. Mertins, 175 Ala. 309, 57 So. 720.

It is contended in argument that the general charges requested by the defendant as to counts 1 and 2 of the complaint should have been given because of the variance between the allegations and the proof in that each of those counts averred that the amount on deposit with the defendant to the plaintiff's credit was subject to the latter's check or demand, while the evidence without dispute was to the effect that it was subject to check only. The contention as to the import of the evidence cannot be sustained. The plaintiff in his testimony, in speaking of the account of several years' standing which he had had with the defendant as a banker, stated that he "made general deposits there, subject to check, and drew checks on his bank." This testimony would support the conclusion that the plaintiff's deposit was a general one, or such a one as was averred in the counts in question. In the connection in which it was made, the statement as to the amount on deposit, being subject to check, did not exclude the conclusion that it was subject to the plaintiff's order or demand in any...