Offutt v. Rucker

• Decision Date: 30 April 1891
• Docket Number: 97
• Citation: 27 N.E. 589,2 Ind.App. 350
• Parties: OFFUTT v. RUCKER
• Court: Indiana Appellate Court

27 N.E. 589

2 Ind.App. 350

OFFUTT v. RUCKER

No. 97

Court of Appeals of Indiana

April 30, 1891

Petition for a rehearing overruled Sept. 19, 1891.

From the Rush Circuit Court.

Judgment affirmed, with costs.

B. L Smith and B. Cambern, for appellant.

D. S Morgan and D. Morris, for appellee.

OPINION

REINHARD, J.

The errors assigned and discussed by counsel in this cause are:

1. The overruling of appellant's demurrer to the appellee's complaint.

2. The sustaining of the appellee's demurrer to the third paragraph of the appellant's answer.

3. The sustaining of the appellee's demurrer to the fifth paragraph of appellant's answer.

The action was on a bank check. The complaint is as follows:

"Mary A. Rucker, plaintiff, complains of George W. Offutt, defendant, and says that on the 18th day of January, 1889, defendant, by his check, a copy of which is filed with and made a part of this complaint, marked A,' requested the Rush County National Bank of Rushville, Indiana, to pay plaintiff, Mary Rucker, or order, one hundred and fifty dollars ($ 150); that it was agreed at the time of the execution of said check that the same was to be placed in the hands of Ben L. Smith, Esq., to be delivered by him to plaintiff in the event that plaintiff and her husband would quit the possession of a certain dwelling-house in the town of Arlington, in Rush county, Indiana, and deliver possession of the same to defendant within days from the date of said check; that said plaintiff and her husband did quit possession of said premises, and deliver the same to said defendant within said time, to wit, on the 7th day of February, 1889; and that said Ben L. Smith, Esq., delivered said check to plaintiff on the said 7th day of February, 1889, upon which day plaintiff duly endorsed said check and presented the same to said bank and demanded payment of the same, which was refused; that said defendant had notice of such refusal on the 14th day of February, 1889; that said check is due and wholly unpaid. Wherefore plaintiff demands judgment," etc.

The particular objections to the complaint, for which appellant's counsel insist the demurrer should have been sustained, are stated in their brief, as follows:

"There is no averment in the complaint that the appellant had no funds in the bank. Now if the funds were provided by the appellant and he issued his check against such funds, what more could he do or be required to do? For aught that appears in the complaint, the appellee was not properly identified, or the bank unable to pay the check for want of funds of their own, nor was payment of the check demanded of appellant after the refusal by the bank."

It was not necessary to aver that the appellant had no funds in the bank. It is immaterial what the bank's motive may have been for refusing to pay the check. Appellee could not have enforced payment from the bank whether it rightfully or wrongfully withheld such payment. There was no privity of contract between the payee of the check and the bank. The appellant had no cause of action against it. Such a check, without words of transfer, does not operate as an equitable assignment pro tanto of the funds on deposit in the bank to the credit of the drawer of the check. Harrison v. Wright, 100 Ind. 515. The averment contended for by the appellant was, therefore, not necessary.

Neither will the complaint be rendered insufficient by failing to allege notice of the dishonor of the check, though we do not decide that such notice is not, in fact, averred in the complaint.

"When demand of payment of a check has been made and refused, it is the duty of the holder to give notice of the dishonor of the check. But a failure in this will not discharge the drawer from liability unless damage shall result to him from the delay or failure, and then only to the extent of the...