Opinion
33453.
DECIDED MARCH 16, 1951.
Action for damages; from Fulton Superior Court — Judge Hendrix. December 7, 1950.
W. George Thomas, George Stewart, J. E. B. Stewart, for plaintiff.
Morris B. Abram, Heyman, Howell Heyman, for defendant.
1. While the right of the maker of a check to have his agent, the drawee bank, to stop payment thereon is absolute, the exercise of this right will not have the effect of avoiding his liability to holders in due course thereof.
2. The plaintiff here was liable as both maker and endorser to the subsequent holders in due course of the check in question at the time he sought to have payment thereon stopped by his agent, the drawee bank.
3. Where, as here, neither general nor nominal damages are sought, but the plaintiff sues for an item of special damage only, which item of special damage is not recoverable, he is not entitled to recover in any amount, although he would have been entitled to nominal damages had the same been sought.
4. There being no conflict in the evidence in this case; and the evidence introduced, construed in its light most favorable to the plaintiff, being insufficient to support a verdict in his favor, it was not error for the trial court to direct a verdict in favor of the defendant.
DECIDED MARCH 16, 1951.
Charles E. Stewart brought an action in the Superior Court of Fulton County against Western Union Telegraph Company, alleging that he had been damaged by the defendant in the sum of $1000 by reason of the following facts: On May 1, 1947, he gave to one L. A. Baker his check for $1000 for the purpose of purchasing an automobile for the plaintiff. After giving him this check, the plaintiff discovered that Baker had failed to make a bank deposit to the plaintiff's credit, as had been agreed between them, and that checks written by Baker had been returned marked "insufficient funds." Immediately thereafter, on May 2, the plaintiff telegraphed the Fulton National Bank, on which the check had been drawn, using the services of the defendant telegraph company, as follows: "Stop payment check $1000 payable to L. A. Baker dated May 1 [Signed] CHARLES E. STEWART." The defendant negligently transmitted the message as follows: "Stop payment check $1000 payable to A. Baker Dalto, May 1st [Signed] CHARLES A. STEWART." Fulton National bank entered a "stop order" against a check payable to A. Baker Dalto, but paid the check issued to L. A. Baker in the regular course of its business; and this negligence and lack of ordinary care on the part of the defendant is the sole and proximate cause of the plaintiff's damages. The prayers were for process and for a judgment of $1000 plus interest.
The defendant's answer admitted the mistake in the transmission of the telegram. It set out: that the original message had been written in longhand; that the word "dated" commenced with a capital "D" and the last three letters had the appearance of an l, t, and o; that no claim had been presented in writing to the company within 60 days of the occurrence of the event, as required by the tariff provisions of the Georgia Public Service Commission, and the contract on the back of the Western Union form on which the message was written, and which was in consequence accepted by the plaintiff; and that also, under the aforesaid provisions, the defendant would not in any event be liable for more than $500, the subject matter involving the non-delivery of a message at the unrepeated message rate.
Upon the trial of the case, the original message as written by the plaintiff and the $1000 check were introduced in evidence. The check was signed, "Chas. E. Stewart," drawn on the Fulton National Bank of Atlanta, Georgia, dated May 1, 1947, payable to L. A. Baker. On the back appear the following endorsements: "L. A. Baker; Chas. E. Stewart; I. Krieger." There is also the endorsement stamp of the Citizens Southern National Bank of Valdosta, dated May 1, 1947, and of the Federal Reserve Bank of Atlanta, dated May 5, 1947.
Upon the conclusion of the evidence, the trial court directed a verdict in favor of the defendant, and this ruling is made the foundation of the direct bill of exceptions.
1. The bank upon which the payment of a check is sought to be stopped being the agent of the maker, the latter is entitled as a matter of right to stop payment of any check drawn by him on such bank at any time before such check is presented to such bank for payment. Bank of Hamilton v. Williams, 146 Ga. 96 ( 90 S.E. 718). This right, of course, cannot be exercised by the maker of such check in a way and manner that will prejudice the rights of holders in due course of the check in question, without becoming liable on the instrument to such holders. Code, §§ 14-507, 14-604, 14-609. Sparks Milling Co. v. Western Union Telegraph Co., 9 Ga. App. 728 ( 72 S.E. 179). When this right on the part of the maker of a check is sought to be exercised by giving notice to the drawee bank through the communicable means of a telegraph service, the telegraph company becomes liable for any damages sustained by inexcusable failure on its part to make proper delivery of the telegram. Cronheim v. Postal Tel. c. Co., 10 Ga. App. 716 (4) ( 74 S.E. 78).
2. The maker of the check under consideration was liable as such to innocent holders in due course, for value, and without notice that at the time it was negotiated there was any infirmity or defect in the title of the person negotiating it. See Code, §§ 14-502, 14-507, supra. Upon the check being drawn, it was endorsed by the payee. The maker then endorsed it under the name of the payee. The check was then endorsed by one Krieger. It was cashed by him and endorsed by the C. S. Bank of Valdosta. Thus, in addition to a liability on the check as maker, the plaintiff was an accommodation endorser and therefore liable to all parties subsequent to the payee on said check. Code, §§ 14-604, 14-609. These transactions were all had on the same day the check was issued and before it was presented to the drawee bank for payment. It was therefore impossible for payment to have been stopped on the check in such manner as to avoid liability, both as maker and endorser, to the plaintiff as hereinbefore pointed out. The failure of the defendant, therefore, to deliver the telegram in no way affected the liability of the plaintiff on the check. The $1000 paid by the drawee bank from the account of the maker is equivalent to the same sum as the maker was liable to pay in any event had payment been stopped.
3. The evidence demands the conclusion that the defendant breached a legal duty which it owed to the plaintiff. The plaintiff did all that was required and necessary on his part to get the message sent. The failure of the defendant to transmit the message properly was through no fault of his. The action, however, is based on one item of special damage, in the sum of $1000. The plaintiff failed to prove any loss for the reasons set out in the preceding division of this opinion, and was therefore not entitled to the measure of damages sought. The petition does not seek general damages. Had it done so, the plaintiff's case would have been made out for nominal damages. See Lastinger v. City of Adel, 69 Ga. App. 535 ( 26 S.E.2d 158). He could have sued for nominal damages only. See Green v. Weaver, 63 Ga. 303. Had he sued for general damages or nominal damages, either or both, the direction of the verdict against him would have been error. Where a petition enumerates the items of special damage and this amount aggregates the exact sum sued for, it is assumed that the purpose of the plaintiff was simply to seek a recovery of his special damages, and that he waives the right to recover general and nominal damages. Hadden v. Southern Messenger Service, 135 Ga. 373 (3) ( 69 S.E. 480); Wright v. Smith, 128 Ga. 432 ( 57 S.E. 684); Hall v. Browning, 195 Ga. 423, 428 ( 24 S.E.2d 392).
4. There being no conflict in the evidence in this case; and the evidence introduced, construed in its light most favorable to the plaintiff, being insufficient to support a verdict in his favor, it was not error for the trial court to direct a verdict in favor of the defendant. See Code, § 110-104; Whitaker v. Paden, 78 Ga. App. 145 ( 50 S.E.2d 774).
The trial court did not err in directing a verdict in favor of the defendant.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.