The petition for rehearing does not seriously contest the statement that the complaint bases the right of the plaintiffs to recover from the bank upon the proposition that Hargrove's account in the bank was a special cotton account which was impressed with a trust in their favor. We are satisfied that there was no special cotton account and hence there was no error in our opinion thereabout.
But petitioners say that they are entitled to recover, not from the estate of Hargrove, the purchaser of their cotton, nor from the persons to whom Hargrove sold it, but from the bank, for the reason that Hargrove drew drafts upon the firms, Walker Co. and Sprunt Sons, to whom he shipped the cotton, the proceeds of which went into his account, in the bank — an account which we have found to be a general, not a special cotton account — that this was a cash transaction, and the title did not pass.
Strictly speaking this issue is not made by the complaint. It first appears as a serious element in the case in the Circuit decree. However, we prefer to consider it. *Page 202
The principle of law is well settled that title to property, in a cash transaction, where payment is made by check which is dishonored, does not pass to the purchaser. The seller may repossess it if it has not passed into the hands of an innocent purchaser without notice. If it has so passed, he may recover the value of it from the purchaser, or from one who receives it from the purchaser with notice. The Circuit decree goes further than that, and holds that the proceeds of the drafts given by Hargrove upon the firms to whom he shipped the cotton may be followed in the hands of the bank which had cashed the drafts before they were paid by those upon whom they were made, and had placed the cash to the credit of Hargrove in his general account. It goes even further than that; it goes to the extent of holding that if the bank has paid out Hargrove's funds on checks drawn by him, and offset his indebtedness to it by application against his deposits, the plaintiffs may have recourse upon the general funds of the bank.
The Circuit decree cites Section 177, Cr. Code 1922, now Section 1282, Cr. Code 1932, as indicative of "the legislative mind" on this subject of sale of certain agricultural products and farm properties. The title of that section is: "Making Way with Produce before Paid for, Fraud." There is no question of fraud on the part of any one interested in the present transaction. We fail to see how that section applies to this case.
The authorities cited by petitioner's counsel in the argument in the hearing of the appeal in the case of Young v.Harris-Cortner Co. et al., a Tennessee case reported in152 Tenn., 15, 268 S.W. 125, 54 A.L.R., 516, and cases found in the annotation of that case, were also relied on in the Circuit decree. The main case in Young v. Harris-CortnerCo. turned on a Tennessee statute and is authority for the principle that the seller has an action for the repossession of his property, or he may sue the vendee for the *Page 203 value thereof. This doctrine is recognized in this State, and followed when the facts warrant its application.
An analysis of all the other cases relied on reveals that they are differentiated from our case now under consideration. There is an apparent, but not real, resemblance to our case in that of Lewis v. James McMahan Co.,307 Mo., 552, 271 S.W. 779, cited in 54 A.L.R., 527 (annotation). There the bank was held liable because it had refused to pay the checks and had applied the money to its own debt, although it had full knowledge of the transaction and had then on hand the proceeds of the property sold. In the present case the checks were not presented to the bank until after it had paid Hargrove's check for $9,100.00 and had applied the balance of his account to his past-due note to it. Moreover, there is no evidence that the bank knew that the checks to plaintiff were outstanding. The Circuit decree assumes that the bank knew it because it assumes that the bank knew that that was Hargrove's way of conducting his cotton business. The history of his transactions with this bank, in another town some fifteen or twenty miles away and another bank in the town where Hargrove conducted his business, does not bear out this assumption.
When drafts are accepted by a bank and the amount thereof placed to the credit of the drawer, the drafts become the property of the bank. It is difficult to understand how the proceeds of those drafts could be recovered of the bank upon the doctrine that because Hargrove's checks to the plaintiffs were unpaid the title to the cotton never passed, and as the bank had collected drafts, which Hargrove the purchaser had drawn on the firms to which he consigned the cotton, the bank was responsible to the sellers. This is to make the bank pay twice; it paid for the drafts, now it is sought to make it pay for the cotton.
This is a hard case; one must sympathize with the plaintiffs, and the big hearted Judge who heard this case on circuit sympathized with them acutely. But, however commendable *Page 204 it may be to feel for the losers in such transactions, cases cannot be decided by such considerations.
In the case of Triplett v. City of Columbia, 111 S.C. 7,96 S.E., 675, 678, 1 A.L.R., 349, Mr. Justice Hydrick said: "Where an individual has suffered injury as the result of a wrong done, natural justice calls for some remedy, and the Courts have ever been alert to provide one; hence the boast of the law, which is often pressed upon the attention of Courts, that for every wrong there is a remedy. But there is another axiom of practical wisdom equally important to be observed — hard cases make bad law. Not infrequentlythe hardship of a particular case leads to the strained, if notincorrect, application of sound principles to fit the facts, soas to afford a remedy; and, when the same principles areinvoked in similar cases, it is discovered that they lead toresults that are exceedingly inconvenient, if not so illogicalthat they cannot be justified on settled principles of legalliability." (Italics added.)
The petition for rehearing is denied.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM and MR. CIRCUIT JUDGE S.W.G. SHIPP, ACTING ASSOCIATE JUSTICE, concur.
MR. JUSTICE CARTER: I dissent.