April 14, 1906. The opinion of the Court was delivered by This action was commenced on the 15th day of September, 1903. It came on for trial before Judge Purdy and a jury, on the 28th of November, 1904. Its object was the recovery of $1,000 damages. After hearing the testimony and argument of counsel and the Circuit Judge's charge, the jury rendered a verdict in favor of the defendant. After judgment an appeal was taken to this Court.
The admitted facts are that the plaintiff on the 14th March, 1903, deposited with the defendant bank the sum of $313.75, to be paid out on the check of the plaintiff during banking hours of the defendant. On the 2d day of July, 1903, she issued to one H.R. Harris or bearer a check on the defendant bank for the sum of $13.75; the defendant informed the holder of the check that the plaintiff had funds in its bank to her credit sufficient to pay said check, but that the same were in the savings department of said bank, the rules of which required that all checks presented for payment should be accompanied by the bank's pass-book, and thereupon *Page 187 the holder of the check left the bank. Then on Monday succeeding the day on which the said check was first presented the check was again presented for payment, which was again declined for the reason before given.
It was found that the bank made a mistake, for the funds of the plaintiff were not deposited in the savings department of the bank, but were really subject to the check of the plaintiff, and that this fact was discovered by the bank when the plaintiff presented her book of deposit; that then the bank offered to pay the check, but plaintiff declined to receive the money. On the afternoon of that day, Monday, the bank, through one of its officials, tendered the money to the attorney of the plaintiff, which was declined, with information that suit would be brought.
The defendant admitted that its books showed that plaintiff had on deposit subject to her credit the sum of $213.75, and that said books of the bank were easily accessible by its teller and assistant teller. Regret was expressed by its officers for their mistake.
When the Judge charged the jury, "That if the jury believed that there was no positive and unqualified refusal to pay, they should find for the defendant" — he was in error in this case, for the action of the bank on presentation of the check was tantamount to a refusal to pay. There was no mistake on the part of the plaintiff. The error was committed by the defendant. The Judge should have charged that the jury should have found a verdict for temperate damages. Atlanta National Bank v. Davis, 23 Southeastern Reporter, 191; 3d A. E. Ency. of Law, 1st edition 226.
We will not pass upon the other questions raised, because there must be a new trial at any rate.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed and the action remanded to the Circuit Court for a new trial.