Thompson v. Republic Trust Co.

• Decision Date: 12 December 1924
• Docket Number: 126-1924
• Citation: 84 Pa.Super. 183
• Parties: Thompson v. Republic Trust Company, Appellant
• Court: Pennsylvania Superior Court

84 Pa.Super. 183

Thompson v. Republic Trust Company, Appellant

No. 126-1924

Superior Court of Pennsylvania

December 12, 1924

Argued October 21, 1924

Appeal by defendant, from judgment of C.P. No. 1, Phila. Co.-1922 No. 7862, on verdict for plaintiff in the case of William G Thompson v. Republic Trust Company.

Assumpsit to recover amount erroneously paid by bank. Before McDevitt J.

The facts are stated in the opinion of the Superior Court.

Verdict for the plaintiff in the sum of $ 847.50 and judgment thereon. Defendant appealed.

Error assigned was the refusal of defendant's motion for judgment non obstante veredicto.

Reversed.

C. Brewster Rhoads, and with him Roberts & Montgomery, for appellant. -- The interpretation of the order to stop payment was for the court and the jury should have been instructed that the letter of May 28, 1917, did not constitute an order upon the defendant to stop payment: Baldwin v. Magen, 279 Pa. 302; Kutztown Foundry & Machine Co. v. Sloss-Sheffield Steel and Iron Co., 279 F. 627; Societe, etc., v. Loeb, Lipper & Co., 239 Pa. 264; Shafer v. Senseman, 125 Pa. 310; Foster v. Berg & Co., 104 Pa. 324.

The plaintiff by closing his account and accepting the return of the deposit book and vouchers, and failing for a period of three years thereafter to object to the account as settled, is estopped from holding the defendant liable for the alleged mispayment of the check: 3 R. C. L. (Banks) Sec. 161, 532; 3 R. C. L. 533-34; United Security, etc., Co. v. Bank, 185 Pa. 586; England National Bank v. United States, 282 F. 121; Marks v. Anchor Savings Bank, 252 Pa. 304; Leather Manufacturers' National Bank v. Morgan, 117 U.S. 96; First National Bank of Phila. v. Farrel, 272 F. 371; Trust Co. v. Bank, 265 Pa. 60; Connors v. Bank, 245 Pa. 97; Murray v. Trust Co., 39 Pa.Super. 438; Bank v. Bank, 271 Pa. 107; Knights v. Trust Co., 69 Pa.Super. 89.

Frederick H. Knight, and with him Edmonds & Obermayer, for appellee. -- The plaintiff's letter of May 28th was sufficient notice to the defendant to stop payment: Morse, Banking, 5th Ed., 711; Brady, Law of Checks, 260; Sarantopoulos v. Mid-City Trust and Savings Bank, 222 Ill.App. 24; Osburn v. Corn Exchange Nat. Bank, 208 Ill.App. 155.

The plaintiff was not estopped from recovery because of failure to notify the bank of the mispayment of his check within a reasonable time after the balancing of the account: Manufacturers' National Bank v. Barnes, 65 Ill. 69; 3 Ruling Case Law, 538, sec. 168; Glassell Development Co. v. Citizens' Nat. Bank, 216 P. 1012; National Dredging Co. v. President, Etc. Farmers' Bank, 69 A. 607.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

GAWTHROP, J.

The plaintiff was a depositor in the defendant trust company and brought this action to recover a balance claimed to be due on his deposit account. The allegation was that the defendant paid a check drawn by the plaintiff against his account in the sum of $ 750, after receipt by it of the plaintiff's order not to pay the check. Under the evidence the jury would have been warranted in finding the following facts: On and prior to May 28, 1917, the plaintiff was a depositor in the defendant company. On that date he addressed to it the following letter:

" May 28, 1917.

" Republic Trust Co.,

" Philadelphia, Pa.

" Dear Sirs: --

" I shall feel greatly obliged if you will kindly hold up payment of my check # 188, May 15th, 1917, favor of Bank of Tavares for $ 750 until you hear from me. Could you advise me on receipt of it, or must you either return it unpaid or pay it as soon as you get it? Your kind attention shall be appreciated.

" Very truly yours,

" William G. Thompson."

To this letter the defendant replied on May 29, 1917, as follows:

" Philadelphia, May 29, 1917.

" Mr. W. G. Thompson,

" 1703 Mt. Vernon St.,

" Philadelphia, Pa.

" Dear Sir:

" We are in receipt of your letter of the 28th inst. in reference to check No. 188 for $ 750.

" In reply, we would advise you that when checks are presented they must be paid at sight, unless you authorize us to stop payment.

" Time is not given for us to advise you of the arrival of the check when it is presented, it must be honored or refused immediately.

" We enclose herewith form of stop payment and if you care to sign the same, send it to us promptly and if the check is not paid before the arrival of the order, we will refuse to pay it upon presentation.

" Do we understand you wish us to address you permanently at 5551 Blakemore St., Germantown, Phila., after May 30th.

" Yours very truly,

" William C. Pollock, Jr.,

" WCP:EFC " Treasurer."

On May 30, 1917, the plaintiff properly filled up and signed the form of " stop payment" enclosed in the defendant's letter of May 29, 1917, and mailed it to the defendant. The plaintiff's name and address were on this envelope. The letter was not returned to him. On June 7, 1917, the defendant paid the check and charged the amount thereof against the plaintiff's account. On June 11, 1917, the plaintiff went to the defendant company and learned that the check had been paid. At that time he called the attention of the defendant's general bookkeeper to the fact that he had given notice to stop payment on the check. On June 13, 1917, the defendant received from the plaintiff a letter complaining that he had not received a letter from it in reference to the check which was paid " after my two requests to withhold payment," and that " I certainly cannot understand why you should let it go through after my writing twice about it and returning the slip you use for the purpose." On June 19, 1917, the plaintiff closed his account with the defendant and accepted its check for $ 24.96, being the balance due him by the books of the defendant. At the same time the settlement of the account was entered on plaintiff's pass book and he received it and his cancelled checks, including the check for $ 750 here involved. At that time he asserted no claim against the defendant and made no complaint relative to the mispayment of the check. On February 9, 1921, the plaintiff made formal demand upon the defendant for the $ 750. This appeal is from a judgment entered on a verdict for the plaintiff. The only error assigned is the refusal of the defendant's motion for judgment non obstante veredicto.

The first contention of the learned counsel for the appellant is that the trial judge should have charged the jury that the plaintiff's letter of May 28, 1917, did not constitute a valid order upon the defendant to stop payment of the plaintiff's check. After mature deliberation, we are of opinion that such instruction would have been error. As stated by the learned trial judge in his charge, a depositor is not required to use any prescribed language in telling a bank not to pay his check. The first sentence of the plaintiff's letter of May 28, 1917, was: " I shall feel greatly obliged if you will kindly hold up payment of my check # 188, May 15th, 1917, favor of Bank of Tavares, for $ 750 until you hear from me." Clearly this was sufficient notice to the bank that the plaintiff did not wish the check paid and that its authority to pay had been revoked. " To hold" means " to stop" or " to retain" (Words and Phrases, vol. 4, ed. 1904, p. 3314), and " to hold up" means " to stop" or " to cease" (Century Dictionary and Cyclopedia, vol. 4, p. 555). The addition of the words " until you hear from me" do not in any way qualify the meaning, or detract from the finality, of the plaintiff's clearly expressed request to stop payment. We agree with the learned counsel for the appellee that these words merely indicate that the plaintiff might subsequently change his mind and retract the request. But until that time the order was absolute. Nor are we convinced that the second sentence in the letter changed the situation. It amounted merely to a request to be advised whether the bank could inform the plaintiff of the receipt of the check or whether it was its duty immediately to return it unpaid. From the four corners of the letter, it is manifest that the plaintiff desired that the check should not be paid and that it amounted to a valid notice to stop payment. We agree with counsel for the appellant that the construction of this letter was for the court. (See Standiford v. Kloman, 234 Pa. 443, 449; Baldwin v. Magen, 279 Pa. 302). But in submitting the question of the sufficiency of the notice to the jury, that tribunal having found it to be sufficient, no reversible error was committed.

But there is another reason why it would have been error to charge the jury that under the evidence there was no definite order given by the plaintiff and received by the defendant to stop payment of the...