On Petition for Rehearing.
Robinson, C. J.In the original opinion of the majority of the court, it is stated at the outset that the question presented for determination is, “Did the appellant, in accepting for collection, in the ordinary course of business, the draft delivered to it by appellee, guarantee the solvency of the intermediate banks through which the said draft passed before it was finally presented to the drawee and paid?” The complaint is in two paragraphs, and the judgment of the trial court is reversed, writh instructions to sustain the demurrer to each paragraph of the complaint.
*133In both the opinion of the court and in the dissenting opinion one fact seems to have been overlooked.
In addition to the facts set out in the original opinion, and upon which it is said the complaint is predicated, the second paragraph contains these averments: “That on said day (July 10, 1893) and for a long time prior thereto, plaintiff had been and then was, a customer of said Irwin’s Bank, doing a large amount of business with said bank, including loans, discounts, collections and deposits; that plaintiff for a long time prior to said day was in the habit of carrying large sums of money on deposit in said bank, on which plaintiff was allowed and received no interest; that in consideration of the premises the defendant had, prior to said 10th day of July, 1893, agreed with the plaintiff to make collections of all such claims as might be deposited by plaintiff in said bank for collection, without other charge therefor than the actual cost and expense incurred by said bank in the collection thereof; that, plaintiff’s said contract still being in force and unrevoked, on said 10th day of July, 1893, deposited with defendant’s said bank for collection their draft,” etc. I think these averments in the complaint make a case different from that stated in the opinion. Here is an express contract between the parties. In the presence of such a contract, the commonly accepted mercantile usages and customs must give way. The above allegation clearly makes the second paragraph of complaint good. Where a contract is expressed as here, there is no room to reason out by inference what the agreement was. The parties themselves have spoken. Their agreement is expressed in terms. The consideration is agreed upon. In view of such facts, a court cannot take the conduct of the parties, and say that they did not mean what they said.
*134Counsel for appellant have all along insisted, and I understand the original opinion so to hold, that their contract was one for transmission only. But I am unable to see how this can be true, when the second paragraph of complaint alleges an express contract to collect.
Courts denying the liability of the first bank recognize the effect of an express contract. Thus, in Pennsylvania, if a bank receives a reward for collecting, beyond the expense and mere nominal charge for service in forwarding, and employs a Virginia bank to collect the note, the Pennsylvania bank will be responsible for any negligence of the Virginia bank.
The author of Morse on Banks and Banking (3rd ed.), section 269, who so strenuously denies the first bank’s liability, recognizes this distinction, and says: “If there is an express contract upon the matter of the first bank’s responsibility, of course the question will be governed by it, and if the character of the contract and the consideration is such as to indicate such an interest, the first bank will be held liable, even in those states where upon the ordinary contract it is not held.” For the reasons above stated I think the second paragraph of complaint is good, and that the petition for a rehearing should be granted.
Comstock, J., concurs in this dissenting opinion.