Harden v. Birmingham Trust & Savings Bank

PER CURIAM. The complaint as originally filed contained one count, and two others wer,e subsequently added by way of amendment. The first two counts were in case for a breach of duty arising out of contract, and claiming special damages on account of the illegal tort. The third count is for breauh of contract simply, and hence is in assumpsit. In order to fix a liability, as for breach of duty, on a bank for a failure to pay a check of a depositor drawn in favor of another person, it must appear that the check was presented at the proper time and place, and properly indorsed by the payee, and, if it has been transferred by the payee to another, then it should be indorsed by such other, person also.—First National Bank v. Nelson, 105 Ala. 180, 16 South. 707; Am. & Eng. Ency. of Law, vol. 5, p. 1040 et seq.; Randolph on Com. Paper, § 787. These facts must be averred and proven to authorize a recovery in an action brought in such case. The first and second counts, as originally filed and as last amended, each fail to aver or show that the check was properly indorsed by the per,son presenting the same for payment. It is true that as last amended it is alleged that the check was duly indorsed by the payee, but it is not shown by the allegations of the count that the indorsement was in blank, or that the check was presented for payment by the payee. The count is left open to inference that some other person than the payee presented the check for payment, and it is not shown that the check was at the time of presentation for payment indorsed by such subsequent holder. In this respect the counts were wanting in [614] proper averment, and the demurrer taking the point was properly sustained. As we have seen, the first and second counts were in ease, and the third in assumpsit. Prior to the adoption of the present Code, case and assumpsit could not be joined in the same suit. The present action was commenced prior to the adoption of the present Code. The third count was introduced, by way of amendment, subsequent to the Code’s adoption. The amendment related back to the commencement of the suit, and upon the question of a misjoinder in pleading is to be considered as of the time of the filing of the original complaint. Section 5367 of the Code 1907, relating to amendments, among other things, provides as follows: “* * * Or by striking out or adding new counts or statements of the cause of action, which could have been included in the original complaint or plea, and such amendment shall relate back to the commencement of the suit,” etc. It is plain that the third count, which is in assumpsit, could not have been included in the original complaint with count 1, which was in case, at the time of the filing of the complaint. Motion was made to strike the third count on grounds of departure and misjoinder, which was sustained. It is insisted by appellant that by demurrer, and not by motion to strike, was the proper way to raise the objection, and that therefore the court erred in sustaining the motion. It has been heretofore ruled by the Supreme Court that motion to strike in such cases is the proper remedy.—Turner v. Roundtree, 30 Ala. 706; Springfield Co. v. DeJarnette, 111 Ala. 248-256, 19 South. 995; Western Union Tel. Co. v. Crumpton, 138 Ala. 632, 36 South. 517. We find no er,ror in the rulings of the court, and the judgment must be affirmed. Our view and conclusion [615] render it unnecessary to consider other questions discussed by counsel. Affirmed. Note. — The foregoing opinion was prepared by Chief Justice Dowdell, of the Supreme Court, before the transfer of the case to this court, and was adopted by this cour,t.