The trial was had upon counts 5 and 6 for money had and received, and for negligently intermingling the individual funds of plaintiff with those of a partnership of which plaintiff was a member.
The overruling of demurrer to count 5 is assigned as error. That count avers that the deposit was "on behalf and to the use of the plaintiff"; that a demand for payment by defendant was made and refused. It is not averred how or when the demand was made. Ex parte First Nat. Bank of Montgomery (Williams),206 Ala. 394, 90 So. 340; Id., 18 Ala. App. 273, 90 So. 339. A proper demand for payment by a bank is required, and at a time when there are sufficient funds available of the maker or drawer of the draft or check, before there can be a wrongful failure by the bank to honor the same. The duty to pay is required to be shown by sufficient pleading under the implied terms of the contract of general deposit — that the bank, at its proper place of business, on banking days and within banking hours, on a due presentation of a proper check, will pay if there are sufficient and available funds subject to check. Tobias v. Josiah Morris Co., 126 Ala. 535, 28 So. 517; Ex parte First Nat. Bank of Montgomery (Williams), 206 Ala. 394. 90 So. 340; Davis v. Lime Cola Co., 18 Ala. App. 562,93 So. 328. The bringing of the suit does not constitute the required due demand for payment. The count was subject to demurrer. There may be facts excusing demand, but facts are not here averred dispensing with the necessity of the proper averment of a due demand and refusal to pay. See Ex parte First Nat. Bank of Montgomery (Williams), supra.
Count 6 was challenged by demurrer for the failure of allegation that plaintiff had not been paid by the bank all that was due him. We think the averment of the deposit of sufficient funds subject to check, the demand by check duly presented while there were funds subject thereto (alleged) "for the payment of the balance due him," when referred to and considered, as it must be (Alabama Power Co. v. Stogner,208 Ala. 666, 95 So. 151, L. N. R. Co. v. Johnson, 162 Ala. 665,50 So. 300), with the other averment of the count that plaintiff's account was mingled with the account of Thompson Nailer, "whereby plaintiff's" account was misappropriated and lost to the plaintiff to his damage, was sufficient. There was no error in overruling demurrer directed thereto.
Defendant objected to evidence on the ground that plaintiff failed to furnish on demand a bill of particulars. The demand under the statute is required to be timely — not after the trial of the facts has been entered upon. Code 1923, § 9463; Pryor v. Johnson, 32 Ala. 27; Acts 1915, p. 597. The purpose of the statute is to prevent surprise and to acquaint defendant with the matters claimed. The letter of J. P. Brown, as attorney for plaintiff, was sufficient in this kind of case. The bank was in possession of all the facts — the book accounts (except the passbook); without them, plaintiff could not answer more specifically than was done by the letter of his attorney. The contractual rights and liabilities of the parties as banker and depositor are naturally different from those of an ordinary account. Tobias v. Josiah Morris Co., 126 Ala. 535,28 So. 517; Ex parte First Nat. Bank of Montgomery (Williams), 206 Ala. 394, 90 So. 340.
There was no error in allowing the question (and affirmative answer thereto), "Was the money paid to the bank?" in admitting, *Page 317 over defendant's objection, the note for $451.50 as evidence of an item of debt, and in allowing evidence that the passbook was furnished plaintiff by the bank, etc.
There was no error in excluding the testimony of Miller to the effect that Nailer had never come to witness since the former "had been connected with the bank with any objection about any item of charge on" the passbook. The objection made indicated that the transactions inquired about were before the witness "was connected with" the bank. For this reason the court properly sustained the objection. The evidentiary fact of failure of a depositor to complain of inaccuracies discovered in a passbook or returned checks should be confined to a reasonable time after the passbook is made up and canceled checks redelivered to the depositor. This follows from the rule that the duty to examine the passbook and vouchers is that of due diligence on the part of the depositor. First Nat. Bank v. Allen, 100 Ala. 476, 14 So. 335, 27 L.R.A. 426, 46 Am. St. Rep. 80; McCarty v. First Nat. Bank, 204 Ala. 425, 85 So. 754, 15 A.L.R. 153.
There was no error in permitting the plaintiff to testify as a matter of fact that he did not owe Mr. Snead anything, nor was the firm, Thompson Nailer, so indebted. So, of the indebtedness of the Boaz Bank to Nailer. The court stated to the jury, or to counsel in the presence of the jury, that the issue of fact being tried was whether anything was due or not to plaintiff, and, if so, how much, and that these material facts were required to be ascertained from the evidence by the jury. Such was the import of the ruling and instruction.
A mortgage was pleaded as a set-off. Plaintiff was properly allowed to show that there was a stamp of its satisfaction placed on the margin of the record thereof in the probate office, after notice for satisfaction had been given by the mortgagor. The evidence was material and relevant. Its weight or sufficiency, as well as the authority vel non of Collier in the premises, were questions for the jury.
A discussion of other questions is unnecessary. The foregoing will suffice for another trial.
Charge 7 should have been given. We find no error in refusal of the other charges. They are sufficiently covered by given charges, or misplaced the burden of proof, or were misleading as unduly emphasizing or ignoring the evidence, or were improper as affirmative instructions.
The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.