Thomas v. American Trust Co.

182 S.E. 136, 208 N.C. 653, 1935 N.C. LEXIS 88

• Court: Supreme Court of North Carolina
• Decided: November 1, 1935
• Status: Published

Opinion

CoNNOR, J.

There was evidence at the trial of this action from which the jury could find, as it did, that the refusal of the defendant to pay the check which was drawn by the plaintiff and duly presented for payment by the payee, was wrongful and unlawful. Such refusal was a breach of the contract between the plaintiff and the defendant with respect to plaintiff’s deposit with the defendant. For such breach, the plaintiff was entitled to nominal damages, at least. Woody v. Bank, 194 N. C., 549, 140 S. E., 150. For this reason, there was no error in the refusal of the court to allow defendant’s motion for judgment as of nonsuit.

There was no evidence, however, tending to show that defendant’s refusal to pay the check was malicious. All the evidence shows that the nonpayment of the check was due to a mistake or error on the part of the defendant’s teller to whom the check was presented for payment. For this reason, plaintiff’s recovery in this action is limited to the actual damages which he suffered by the refusal of the defendant to pay his check.

It is provided by statute that “no bank shall be liable to a depositor because of the nonpayment, through mistake or error, and without malice, of a check which should have been paid had the mistake or error of nonpayment not occurred, except for the actual damages by reason of such nonpayment that the depositor shall prove, and in such event the liability shall not exceed the amount of damages so proven.” C. S., 220 (m).

With respect to the second issue, the court instructed the jury as follows:

“The court instructs you that if you find by the evidence and by its greater weight, the burden being on the plaintiff, that the defendant wrongfully refused to honor the plaintiff’s check, as alleged, or wrongfully represented that the plaintiff had no account in the defendant’s bank, and that in consequence of the latter, the plaintiff’s check was turned down, and you further find from the evidence and by its greater weight that as a proximate result of this the plaintiff’s credit was impaired or impeached, or his standing injured, or his reputation impaired, then the jury should award such damages as they shall find from the evidence and by its greater weight to be a reasonable compensation for the injury, if any, to the plaintiff’s credit, standing, or reputation, brought about and proximately sustained in consequence and as the proximate result of'the defendant’s alleged wrongful conduct, if the defendant was guilty of any alleged wrongful conduct.”

The defendant’s exception to this instruction must be sustained. There was no evidence from which the jury could find that plaintiff’s credit had been injured, his standing impaired, or his reputation impeached by the refusal of the defendant to pay his check. The plaintiff himself testified to the contrary.

For the error in the instruction, the defendant is entitled to a new trial.

At the new trial, we think that the only issue as to damages should be as follows: “What actual damages, if any, has the plaintiff sustained by the wrongful refusal of the defendant to pay his check?”

Whether there was evidence at the former trial tending to show more than nominal damages, we do not now decide.

New trial.