Opinion
39117.
DECIDED OCTOBER 11, 1961.
Action for damages. Baldwin Superior Court. Before Judge Carpenter.
Robert H. Herndon, Frank W. Bell, for plaintiff in error.
W. George Thomas, contra.
1. The grounds of special demurrer, being neither argued nor insisted upon, will be treated as having been abandoned.
2. A general demurrer contending only that the petition does not set forth a cause of action does not raise the question of whether or not the petition is duplicitous.
3. The plaintiff's petition set forth a cause of action and the trial court did not err in overruling the defendant's general demurrer.
DECIDED OCTOBER 11, 1961.
H. T. Carr sued the Milledgeville Banking Co. to recover damages because the defendant failed to honor described checks, issued by the plaintiff and drawn on the defendant bank, at a time when the plaintiff had sufficient funds on deposit to cover such checks. It was alleged that the plaintiff had become an indorser on two notes held by the defendant but that neither note had matured at the time the defendant refused to honor his checks and returned the same with a notation that his balance was "being held to secure note." The defendant filed general and special demurrers to the petition which demurrers were overruled and it is to such judgment adverse to it that the defendant now excepts.
1. The defendant's special demurrers, attacking one paragraph of the plaintiff's petition, are neither argued nor insisted upon and are treated as having been abandoned.
2. The defendant's general demurrer was based solely on the ground that the petition set forth no cause of action and, accordingly, did not reach the question argued in defendant's brief that the petition was ambiguous in that it did not clearly show whether the plaintiff was seeking a recovery ex contractu or ex delicto. See Ward v. Nance, 102 Ga. App. 201 (1) ( 115 S.E.2d 781), and citations.
3. While a bank may set off funds on deposit against a matured claim of the depositor (see Aiken v. Bank of Georgia, 101 Ga. App. 200, 202, 113 S.E.2d 405, and citations), where it fails or refuses to honor a properly presented check drawn on it by the depositor when sufficient funds are on deposit to cover such check the depositor is entitled to recover "temperate" damages for such refusal. See the following cases cited by the trial court in support of the judgment overruling the defendant's general demurrer. Atlanta Nat. Bank v. Davis, 96 Ga. 334, 337 ( 23 S.E. 190, 51 ASR 139); Hilton v. Jesup Banking Co., 128 Ga. 30, 32 ( 57 S.E. 78, 11 LRA (NS) 224, 10 AC 987); Stevens v. Little-Cleckler Const. Co., 19 Ga. App. 483, 486 ( 89 S.E. 597); Few v. First Nat. Bank, 40 Ga. App. 791 (1) ( 151 S.E. 546).
The plaintiff's petition alleged that he had funds on deposit sufficient to cover the checks dishonored, and that the notes indorsed by him had not matured and were not past due. The plaintiff's petition set forth a cause of action and the trial court did not err in overruling the defendant's general demurrer.
Judgment affirmed. Carlisle, P. J., and Eberhardt, J., concur.