dissenting.
For the following reasons, I cannot concur in the majority opinion: The plaintiff testifies that before accepting the check he talked over the telephone with the defendant’s cashier, a Mr. Hill, and told him that. Beck-with was about to give a check on the defendant, and asked if it was good, to which Hill, after an interval, responded that Beckwith had sufficient credit to protect the check, and that Hill, in response to the plaintiff’s statement that he would take the check, responded, “All right,” or something to that effect. This conversation was plainly insufficient to create any liability on the part of the defendant to the plaintiff. “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check.” Comp. St. 1911, ch. 41, sec. 188. “The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee,” etc. Chapter 41, supra, sec. 131. “An unconditional promise in writing to accept a bill before" it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value.” Chapter 41, supra, sec. 134. “A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this chapter applicable to a bill of exchange payable on demand apply to a check.” *286Chapter 41, supra, sec. 184. If the statute controls the legal status of the parties to this case, a recovery in the plaintiff’s favor cannot be sustained. Van Buskirk v. State Bank, 35 Colo. 142, 117 Am. St. Rep. 182; Lewin v. Greig, Jones & Wood, 115 Ga. 127; Frickson v. Inman, 34 Or. 44; Baltimore & O. R. Co. v. First Nat. Bank, 102 Va. 753; National Bank v. Berrall, 70 N. J. Law, 757; Tibby Bros. Glass Co. v. Farmers & Mechanics Bank, 220 Pa. St. 1; Pease & Dwyer v. State Nat. Bank, 114 Tenn. 693.
The majority opinion refuses to apply the statute for the alleged reason “that after the conversation between plaintiff and defendant, which was by telephone, but before the check was presented, the drawer withdrew his deposit from the bank, but directed it to withhold the sum of $129.60 to meet and pay a check for that sum which he had given, and which was done.” The fact is that the defendant did not withhold $129.60 or any other sum.
The evidence is uncontradicted that shortly before the check was drawn Beckwith sold his personal property at a public sale at which the defendant’s cashier acted as clerk. The proceeds of the sale were deposited in the bank, and as a matter of convenience were credited under the designation of a sale account. At the same time Beckwith carried another account, which was overdrawn, in the defendant’s bank. Beckwith had no special deposit nor a deposit for a special purpose, so the defendant was his debtor for the net credit in his favor after deducting the overdraft in the one account from the credit in the other. 1 Morse, Banks and Banking (4th ed.) sec. 327; Pedder v. Preston, 9 Jur. (Eng.) n. s. 496, 10 Weekly Rep. (Eng.) 773. Hill, the cashier, with whom the plaintiff talked over the telephone, was absent at the time Beckwith stated to Mr. Webster, the officer of the defendant in chargé of the bank, that he wanted to withdraw his balance, less $129.60, the amount of a check outstanding which he desired paid. Mr. Webster inspected the *287sales account, but did not know of and did not inspect the other account, and stated to Beckwith the amount of the sales account less $129.60.- Beckwith drew his check for that balance, and, when it was paid, received more than the amount of his net credit with the defendant. Mr. Webster testifies that Beckwith said that the check had been given in part payment of the purchase price of a tract of land, but the plaintiff testifies that Mr. Webster admitted to him that Beckwith said the check had been given to the plaintiff.. It is immaterial which statement is the more accurate. Mr. Webster did not promise that the bank would pay the $129.60; no credit was given the plaintiff or any other person by the defendant for that sum; the defendant received nothing from Beckwith as the result of the transaction; the'outstanding check was an ordinary check not payable out of any particular fund, and the bank was guilty of no fraud.
If it be conceded that the transaction amounted to an assignment of $129.60 of Beckwith’s credit with the bank to the plaintiff, and upon no other ground can the majority opinion be upheld, it should be remembered that, unless the plaintiff thereafter in reliance thereon so acted that the defendant should be estopped to deny the scope of that assignment, the assignee will stand in the shoes of the assignor, and can exact from the defendant no more than Beckwith could have demanded had the assignment not been made. 2 Story, Equity Jurisprudence (13th ed.) sec. 1047. No one will presume to say that the defendant by its mistake became liable to Beckwith for the $129.60, and it seems reasonable to say that the plaintiff in the circumstances of this case should not be permitted to recover if Beckwith could not. Beckwith’s conversation with the defendant’s officer, that individual’s examination of Beckwith’s account, the computation made and announced, and the drawing and payment of the cheek for the supposed balance, were all parts of the same transaction, which should be considered together in the light of the facts, and when this is done it *288will be understood that the defendant did not owe Beckwith and nothing was transferred to the plaintiff.
This inquiry does not involve any question of negligence. The bank was not the plaintiff’s agent or trustee. There was no privity between them, and it owed him no duty not to make a mistake in ascertaining Beck-with’s balance. The plaintiff did not rely on that computation because he did not know of the transaction until the trial of this case, at which time he amended his petition as stated in the majority opinion.
It seems to me there is nothing in the facts of this case to deprive the defendant of the protection of the statute quoted, supra, and that the majority are insensibly controlled by the former decisions of this court with respect to the rights of a check-holder.
The judgment of the district court should be reversed and the action dismissed.
• Baknes and Rose, JJ., concur in this dissenting opinion.