Conner v. Bank of Bakersfield

SLOSS, J.

Plaintiff appeals from a judgment entered upon the sustaining of the defendant’s demurrer to the second amended complaint.

The complaint in question alleged that on July 21, 1910, one Planz drew his check for $3,799.66 on the defendant, the Bank of Bakersfield, payable to “Kern Valley Bank or bearer.” Negotiable paper, so drawn, is payable to the bearer. (Civ. Code, sec. 3102.) On the same day the cheek was certified by the defendant bank. On May 19, 1911, the plaintiff presented the check to the defendant, but the defendant refused to pay the same, and it has never been paid to plaintiff. On July 20,1911, the defendant bank commenced an action of interpleader against the plaintiff and Planz, in which the plaintiff and Planz “were required to and did interplead together concerning their claims to the said check and to the said money called for thereby.” Plaintiff and Planz appeared in said action, and thereafter the court rendered judgment therein in favor of the plaintiff that she, as executrix, was entitled to have paid to her the amount of said check. It is not alleged that this judgment has become final, and the action of interpleader is apparently still pending.

The complaint alleges further that plaintiff was compelled to employ counsel in said action, and to expend money for costs and traveling expenses, and has been deprived of the use of said sum of $3,799.66, and of interest thereon, from the nineteenth day of May, 1911. It is also alleged that the plaintiff has suffered general damages in the further sum of $2,350. The prayer is for judgment for interest on the amount of the cheek, together with the amount of the various other items of damage alleged.

The demurrer specified as grounds (1) that the complaint does not state facts sufficient to constitute a cause of action, and (2) that there is another action pending between the same parties for the same cause. This demurrer having been sustained without leave to amend, judgment was entered that the plaintiff take nothing by the action, and that the defendant recover from plaintiff its costs.

[402]

By certifying the check the bank became bound as a direct and original promisor to the payee. (1 Morse on Banks .and Banking, 4th ed., see. 414; 5 R. C. L. 523, 524.) Its obligation was one “to pay money only,” and the measure of damages for the breach of such obligation is “the amount due by the terms of the obligation, with interest thereon.” (Civ. Code, sec. 3302.) The complaint alleges that the cheek, payable to bearer, was presented by plaintiff to the certifying bank, and payment refused. Clearly, therefore, the pleading stated a cause of action for the recovery of the face of the check, with interest from the date of presentation. The sufficiency of the complaint as stating a cause of action is, of course, not impaired by the fact that the plaintiff may have asked for more items of damage than are recoverable.