1. While in this ease there was evidence shewing that the plain tiffs Avere not entitled to recover, and some of the testimony given by them seems to be inconsistent Avith the theory on which they were proceeding, yet, in view of their testimony as to their relation to the bank, the facts that transpired in connection with the check involved (which was payable to their order and indorsed generally and deposited to their credit), and in connection Avith the conduct of the bank and the delay on its part in seeking to collect the check before asserting any right to charge back the amount thereof to the plaintiffs, and in relation to a loss claimed to have accrued to them by reason of the bank’s conduct, and other facts recited in their testimony, it can not be held that they Avere so clearly not entitled to recover as to authorize the presiding judge to direct a verdict in favor of the defendant bank. The case should have been submitted to a jury, under proper instructions.
*210November 9, 1915. Complaint. Before Judge Jones. Banks superior court. December 23, 1914. W. W. Starlc and J. B. G. Logan, for plaintiffs. A. J. Griffin and Hammond Johnson, for defendant.2. There was no error in overmling the general demurrer to the petition. Nor was there error in overruling the ground of demurrer which set up the contention that the petition was inconsistent in seeking to recover against the bank for negligence as an agent of the plaintiffs, and also to recover against the bank for illegally charging against the plaintiffs an alleged uncollected balance of the check, which the plaintiffs averred that they had indorsed generally and deposited in the bank and against which deposit they had drawn checks. The action was not based upon the theory of recovering damages from a negligent agent, but the allegation in. regard to the negligence of the bank was made in aid of the denial of the asserted right of the bank to charge back the amount of the check against the deposit account of the plaintiffs.
Judgment reversed on main bill exceptionsj and affirmed on cross-bill.
All the Justices concur, except Beclc, J., absent.