Under the laws of pleading in this state, it has long been accepted as quite elementary that, where there are allegations of contradictory ultimate facts (facts from which it may be determined as a matter of law whether the petition sets forth a cause of action, distinguished from evidentiary facts, which are matters of proof and testimony), as against demurrer, that view of the petition, or those ultimate facts, most unfavorable to the pleader must control in a construction of the petition. There are only two controlling ultimate facts alleged in the petition under consideration in this case. They are contradictory. The first is an allegation that the sight draft was *Page 785 deposited with First National Bank of Cartersville for transmission to First National Bank of Dalton, as collecting agent for the plaintiff. The second is an allegation that the sight draft was deposited as a cash item with First National Bank of Cartersville, and that the plaintiff had proceeded to draw checks against the same. If the first allegation is true, the petition stated a cause of action; if the latter is true, it did not; for, if the paper was deposited as a cash item, title passed to First National Bank of Cartersville. I am well aware of that line of cases following the so-called New York rule, of that following the Massachusetts rule, and I am also aware thatBailie v. Augusta Savings Bank, 95 Ga. 277 (21 S.E. 717, 51 Am. St. Rep. 74), established the New York rule in this State, and that the General Assembly modified that rule by the act of 1919. Notwithstanding, where title to the paper presented for collection passes from the depositor of the paper to the receiving or forwarding bank, it seems to me quite axiomatic that the depositor would have no right of action against the correspondent bank, to which it was sent for collection by the receiving bank, for its negligence in such regard, regardless of whether the New York, Massachusetts, or statutory rule obtained. I must stand upon the ground that it is not the function of a court of review to determine a ruling on demurrer as if the case had been tried on the evidence by a jury. If the case had been tried on the evidentiary facts alleged, there might be some basis for the majority ruling, but, as I see it, the judgment should be arrived at by the application of entirely different rules, the rules of pleading, rather than rules of evidence.