First N. B. of Tamaqua v. Shoemaker , 117 Pa. 94 ( 1887 )

Opinion,

Mr. Justice Gbeen:

It has been repeatedly held that the holder of a bank check has no right of action on the check against the bank. Although there may be funds of the drawer sufficient to pay the check in the hands of the bank at the time of presentment and no other appropriation of them made, yet the bank may refuse payment without subjecting itself to a suit by the holder : Saylor v. Bushong, 12 W. N. 81; Northumberland Bank v. McMichael, 106 Pa. 460; Bank of the Republic v. Millard, 10 Wall. 152. In Harrisburg N. Bank’s Appeal, 10 W. N. 41, we said that an ordinary bank check “ is neither a legal nor an equitable assignment or appropriation of a corresponding amount of the drawer’s funds in the hands of the drawee. It gives the payee no right of action against the drawee, nor any valid claim to the funds of the drawer in his hands.” Of course if the bank has accepted the check in the hands of the holder it then becomes liable to pay and must respond in an action by the holder.

In the present case there was no acceptance of Shoemaker’s check in favor of Shepp & Co. nor any acts done indicating an intention to accept it. On the contrary payment was refused as soon as it was presented. The action was brought by Shepp & Co. in their own name only, in August, 1874. On the trial in November, 1885, the court permitted an amendment of the record by adding John A. Shoemaker to the use .of D. Shepp & Co.,' and a recovery was then had upon the theory that the cause of action was the same and it was simply adding the name of the legal plaintiff. But it is very clear that the cause of action is not the same in' any point of view, and that John A. Shoemaker could not be the legal plaintiff in an action upon the check in suit. It is a check drawn by Shoemaker payable to the order of Shepp & Co., and hence the whole right of action upon it was vested in Shepp & Co. when accepted by the bank. Shoemaker could in no circumstances bring an action upon the check as an obligation payable to himself. He could sue the bank to recover damages for dishonoring his check, or he could bring an action of assumpsit to recover the amount of his deposit as for money had and received; but in no event could he maintain any action upon the check itself. In 2 Pars. Bills and Notes, 61, it is thus said: “ One of the many reasons why the holder of a check, upon the refusal of the bank to pay it, having sufficient funds of the drawer therefor, cannot maintain an action against the bank, is the existence of such a right of action on the part of the drawer, who may sue the bank in tort for the wrong done, or in assumpsit for the breach of the implied contract to honor promptly the customer’s checks. In such action nominal damages may be recovered though no actual damage be shown.” The writer further states that the jury may give the plaintiff in such an action such reasonable damages as he may have sustained from the dishonor. It follows that adding Shoemaker’s name as legal plaintiff conferred no additional right of action upon Shepp & Co. in relation to the check in suit.

As to Shoemaker’s right of action to recover damages for the dishonor of his check, or specifically to recover his deposit, it was of course entirely different from any right of action possessed by Shepp & Co. either on the check or for any other cause, and hence the amendment could not properly be allowed. Either of Shoemaker’s rights of action was subject to the bar of the statute of limitations several years before the amendment was allowed; and, therefore, it was error to permit the amendment against the present defendant, who would thereby be deprived of the privilege of pleading the statute. An amendment to a declaration will not be allowed if a new cause of action is thereby introduced, especially where the new cause is so old as to have been barred by the statute of limitations: Wright v. Hart’s Adm’r, 44 Pa. 454. See also Smith v. Smith, 45 Pa. 404 and Tyrrill v. Lamb, 96 Pa. 464.

The assignments of error are all sustained.

Judgment reversed.