This cause is before us on petition for writ of certiorari to test the legality of the judgment of the circuit court affirming a judgment of the Civil Court of Record of Dade County.
The declaration was in one count, as follows:
"Said defendant became and was prior to the institution of this suit and still is justly indebted to the plaintiff in the sum of four hundred and seventy-five *Page 674 dollars ($475.00), together with interest from August 24th, 1940, money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff.
"And being so indebted the defendant in consideration thereof then and there promised to pay to the plaintiff on request the said several sums of money; yet, the said defendant though often requested has not paid the same or any part thereof to the plaintiff but refuses so to do.
"Wherefore, plaintiff sues the defendant and claims damages in the sum of one thousand dollars ($1000.00)."
To the declaration there was interposed a single plea of never was indebted as alleged.
The proof showed that plaintiff, being a depositor in defendant bank, issued his check against his account in the said bank in the sum of $475.00, but, before said check was presented to said bank, plaintiff ordered said bank not to pay the check; that after receiving plaintiff's order not to pay the check the bank disregarded the order, paid the check and deducted the amount thereof from plaintiff's account.
No plea of subrogation, of counter-claim, or of set-off or of recoupment was interposed. Under the pleadings and proof, judgment was properly entered for plaintiff.
Writ of certiorari is denied.
So ordered.
BROWN, C. J., WHITFIELD, and ADAMS, JJ., concur. *Page 675