Opinion by
Head, J.,In November, 1908, a partnership composed of Ralph Harding, the plaintiff, and his brother, Frank Harding, doing business under the firm name of Harding Bros., opened an ordinary deposit account with the defendant bank. The pass book issued to them stated the account to be with the firm of Harding Bros., Avhich of course meant the firm as it existed at the time the account was opened. From that date, at least until July, 1913, deposits continued to be made and checks to be drawn in the customary way against it. in May, 1914, the present plaintiff, Ralph Harding, began an action against this defendant for the recovery of about three hundred and eighty dollars which he alleged still remained in the said account and Avhich the bank had unjustly refused to pay to him. He avers in his statement, and supports the allegation by his own testimony, that in July, 1913, the partnership theretofore existing between his brother and himself was dissolved. He presented no instrument in writing providing for such dissolution'or declaring what distribution of the firm assets, including the bank account, had been made between the partners. It appears *71further, from his testimony, that the reason for the dissolution was his complaint that his brother, Frank, had been withdrawing from the partnership account more than was justly his share of it. Whether these withdrawals were made by checks, issued by Frank Harding for his own individual use or by notes made by him and charged to the firm account, does not appear. No notice of the alleged dissolution of partnership was given to the bank nor any notice that it should not, after July, 1913, continue to deal with the firm account as it had previously done with the apparent consent of both partners. In December, 1913, the plaintiff testifies he took the pass book to the bank to have it balanced or written up. When that was done the- book was returned to him personally together with certain cancelled checks and notes which had been chai’ged against the account. Upon examination of these in the bank, the jplaintiff testifies he discovered that two notes given by his brother, Frank, payable at the bank and aggregating three hundred and eighty .dollars had been charged to the firm account. Thereupon, for the first time, he notified the bank of the dissolution of the partnership in the previous July and declared, as he testifies, that such a charge was unwarranted and he would undertake to collect from the bank the amount SO' charged to the firm account. He was then told, as he says, by the cashier of the bank, that the only way he could recover it would be to collect it by law. The plaintiff then drew a check, not for the entire amount of the balance that would have been due without the alleged improper charge, but for what remained with the notes charged up. This check was promptly paid over the counter. The plaintiff took away with him the notes that had been charged up, and, without ever returning them or offering to return them, began this action, as already stated, in May, 1914. The plaintiff, as his own testimony shows, never drew a check against the balance which he alleges to hate been due in the deposit account, which, as he says, became his individual property from *72the time of the dissolution of the partnership in July, 1913.
When this state of facts became apparent from the plaintiff’s own testimony, the learned trial judge entered a compulsory nonsuit which he afterwards refused to take off and this appeal followed.
We are first asked to say the action cannot be maintained because the plaintiff sues in his own name, to recover a sum which originally belonged to a partnership of which he was but a member, for the reason that if he owned it at all, it must have been in right of an assignment, legal or equitable, from his former partner. The action therefore should have been in the name of the firm for the use of the present plaintiff. Under the modern practice acts and the departures they have brought about from the old rules of pleading, we would not feel justified in dismissing the plaintiff’s case on this account. The defective pleading, if necessary to work out the ends of justice, could have been amended on application in the court below and the same amendment could be allowed by this court.
Some other matters are urged upon us by counsel for the appellee which we do not deem of sufficient importance to warrant any special discussion, but there are two or three questions raised which we must now consider. (1) The contract of a bank with its depositor, in opening what we may term an ordinary checking account, doubtless is that it will pay over the deposits in its hands on the order of the depositor, but that order is to be in writing in the usual form current in the business world. It would be intolerable were the law to be that a man may make a deposit in a bank, and upon the declination of an officer or clerk of the bank to pay over the money .on a mere or'al demand, a suit could be maintained for its recovery. There is nothing in the evidence in this case to show that the bank ever refused to pay a check properly drawn against the alleged balance. (2) There is nothing in the evidence to show that at or before the *73time when the bank charged np to the firm account the two notes of Frank Harding it had any notice of the change in the business relations of the two brothers, or that it was thereafter prohibited doing what it had previously done with the apparent consent of the partners. (3) There is no evidence that at the time the plaintiff took away from the bank the two notes of his brother, which, as he alleges, were improperly charged to the firm account, his brother was insolvent or that a recovery could not have been had either by him or the bank against the maker and endorser of those notes. He never returned the notes to the bank; he never tendered a return of them but retained them until nearly three years later at the time when the cause was about to be tried. Sometime in the interval Frank Harding had confessed a judgment in favor of his mother upon which an execution had issued and his property had been sold by the sheriff. Upon this state of facts we think it was legally impossible for the plaintiff to maintain an action for the recovery of the money evidenced by the notes. He had put it out of the power of the bank, by taking them and retaining them, to recover anything from the maker or endorser of them. It appears to us it would not be in accordance with the dictates of either common justice or sound legal principles to now permit him to recover unless he may rely upon Ms final proposition. We now state it. (á) His counsel argues that because the cashier of the bank said under existing circumstances you cannot repudiate this transaction unless you sue to recover your money, the bank has waived its right to demand what would otherwise be a clear legal requirement to be performed by the plaintiff before suit could be brought. This conclusion cannot be sound for two reasons. The language used by the cashier certainly does not imply any intention that- in case of such suit the bank would waive any of its legal rights. On the contrary, it is rather a warning that it would rest its case on such right. Secondly, because there is no trace of evidence *74the cashier had any authority to practically give away any valuable property of the bank. It was clearly not within the scope of his apparent authority to hand over two valuable securities to the plaintiff, and, as already stated, there is no evidence at all of any express authority vested in him to do such a thing. There was therefore no evidence to warrant the court in submitting to the jury, to be determined as a question of fact, whether or not the bank had waived its right to have the securities returned before the plaintiff could maintain his action.
Under these circumstances we are of opinion the learned court below was right in entering a compulsory nonsuit and thereafter refusing to take it off. The assignments of error are overruled.
Judgment affirmed.