OPINION ON MOT.ION NOR REHEARING.
Biggs, J.We are asked to transfer this case to
the supreme court on the ground that our decision is opposed to that of the Kansas City court of appeals in the case of Ripley National Bank v. Latimer, 64 Mo. App. 321. The learned judge who delivered the opinion in that case said: ‘ ‘If the bank holding a deposit subject to the payment of a check on its presentation wrongfully refuses payment, the holder of the check has a right to sue the bank in an action of assumpsit upon the implied promise which the law raises in behalf of the holder of the check.” To sustain this the opinion cites the cases of Zelle v. Savings Inst., 4 Mo. App. 401; McGrade v. Savings Inst., 4 Mo. App. 330; Sutter v. Bank, 7 Mo. App. 532; Lewis v. Bank 13 Mo. App. 204; Savings Ass’n v. Bank, 11 Mo. App. 292. The doctrine of the foregoing cases was expressly overruled by the supreme court in Dickinson v. Coates, 79 Mo. 250. It was there decided that a bank check drawn for a part only of the drawer’s deposit, does not operate either at law or in equity as an assignment of the deposit pro tanto or confer any lien upon it. As it appeared in the case of Ripley v. Latimer, supra, that the drawer of the check had no funds in the bank at the time the check was presented, the foregoing extracts from the opinion may rightfully be regarded as dicta. The motion to transfer will be overruled.
All concur.