Hartford v. All Night and Day Bank

HENSHAW, J.

This is an action for damages. The jury awarded plaintiff two thousand five hundred dollars. Upon defendant’s motion for a new trial, hy order of court and on the consent of plaintiff, the judgment was reduced to the sum of one thousand two hundred and fifty dollars; whereupon the motion for new trial was denied. Defendant appeals from the judgment and from the order denying its motion for a new trial.

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The complaint charged that the defendant was doing a general banking business; that plaintiff was a depositor in the bank, and at the time of the occurrences hereinafter narrated always had more than ten dollars to his credit in the bank. On September 3, 1911, he gave his check on the bank for the sum of ten dollars to one Lewis. This check was indorsed by S. C. Maphet. In due course of business the check was presented to defendant on or about the fifth day of September, “when the bank refused payment thereof, indorsing upon a slip of paper which it attached to said check, ‘No Account.’ ” Following this rejection, Maphet swore to and filed a criminal complaint in a justice’s court of Redondo, charging plaintiff with the violation of section 476a of the Penal Code, the crime consisting of the drawing and issuing of a check willfully and with intent to defraud, the drawer knowing at the time that he had not sufficient funds in or credit with the bank to meet the check on presentation. Further, the complaint charged that plaintiff was arrested on September 29th, had his hearing before the justice on October 2d, when the justice dismissed the charge and exonerated the plaintiff. By reason of his arrest and detention plaintiff alleges that he was injured in his reputation and good name, and grievous mental suffering was inflicted upon him, to his damage in the sum of fifteen thousand dollars.

To supplement the facts thus stated, it may be said that at the time plaintiff drew his check he had on deposit in the savings department of the bank the sum of twenty-five dollars. Under the by-laws and rules of this savings bank, this was a time deposit, subject to withdrawal only after notification and time allowance to the bank. The bank reserved the right to waive time and pay upon request, but declared that withdrawals from the savings accounts should be entered on the depositor’s pass-book at the time the withdrawal was made, and that it was not bound to make any payment unless the pass-book was presented. The bank also transacted a regular commercial business. What plaintiff actually did was to draw an ordinary commercial check in the sum of ten dollars in favor of himself. This was upon Sunday, the 3d of September. He negotiated it upon that day through the indorsement of Maphet and Jones. The cheek passed through a Redondo bank and came to defendant’s bank under these circumstances and was returned with the printed form of