
    WILLIAM W. AVERELL vs. THE SECOND NATIONAL BANK.
    Plaintiff being, on the 16th of May, the holder of a $1,000 check, postdated the 18th, took it after banking hours to the bank upon which it was drawn. The bank had closed its doors; but he being admitted to one of the back rooms thereof, found there the paying teller and left the check with him, who promised to see to its collection and to carry the amount to plaintiff’s credit on the books of the bank. Sunday being the 18th the check was not payable until the 19th, and although on that day the bank had sufficient money to the credit of the drawer to have paid the check, yet, by some oversight, it was all paid out on other checks of the drawer presented at various times during the day, including the payment of $1,590 on the two drafts held by the bank itself, so that, there being nothing left to pay the plaintiff’s check, it was protested at the request of the bank as holder thereof. Held, that the bank having ratified the action of the paying teller in thus receiving the check for collection became responsible for the performance of that duty and could not apply any of the money of the drawer of the check to the payment of its drafts until the plaintiff’s check was first paid.
    At Law.
    No. 25,372.
    Decided April 30,1888.
    The Chief Justice and Justices Cox and James sitting.
    Motion by plaintiff for a new trial on a bill of exceptions.
    Action for money had and received. At the trial the Court directed a verdict for the defendant.
    The Facts are sufficiently stated in the opinion.
    Mr. Edward A. Newman, for plaintiff:
    There can be no doubt that, under the circumstances of this case, the law transferred the amount of plaintiff’s check from the account of the drawer to the credit of the plaintiff, and fixed the bank’s liability to account therefor to the plaintiff. Kilsby vs. Williams, 5 Barn. & Ald., 815; Morse, Banking, p. 321; Oddie vs. Nat. City Bank, 45 N. Y., 735; Nat. Gold Bank & Trust Co. vs. McDonald, 51 Cal., 64; City Nat. Bank vs. Burns, 68 Ala., 275; First Nat. Bank vs. Burkhardt, 100 U. S., 686.
    
      In the case, of a deposit of a check drawn upon itself the hank becomes at once the debtor of the depositor, and the title to the deposit passes to the bank. Oddie vs. Nat. City Bank, 45 N. Y., 735; Tinkham vs. Heyworth, 31 Ill., 519; Bank of New Hanover vs. Kenan, 76 N. C., 345.
    The public dealing with a bank is not bound to inquire into the special instructions given to its officers or servants as to the manner in which their duties are to be performed, and the bank will be bound by - their acts, and must be ■ held responsible for the conduct of their officers within the scope of their apparent authority. Munn vs. Burch, 25 Ill., 35; East River Nat. Bank vs. Gove, 57 N. Y., 597; Hotchkiss vs. Artisans Bank, 42 Barb., 517; Jackson Ins. Co. vs. Cross, 9 Heisk. (Tenn.), 283.
    Banks are responsible for the acts of their agents, even when the agents exceed their authority. Farmers & M. Bank vs. Butchers & D. Bank, 16 N. Y., 125; Lloyd vs. West Branch Bank, 15 Pa., 172; Minor vs. Mechanics’ Bank, 1 Pet., 69; Merchants’ Bank vs. State Bank, 10 Wall., 644, 646, 650.
    The question as to whether there had or had not been a deposit of the check was a fact to be found by the jury in this case; and the Court erred in taking that question and other questions of fact from the consideration of the jury. First Nat. Bank vs. Burkhardt, 100 U. S., 686.
    Mr. William F. Mattingly, for defendant:
    There is no privity of contract betw¿en the holder of a check and the bank on which it is drawn. The bank owes no duty and is under no obligation to the holder; and he cannot sue the bank for refusing payment in the absence of proof that the check was accepted by the bank or charged against the drawer. Bank of the Republic vs. Millard, 10 Wall., 152; First Nat. Bank vs. Whitman, 94 U. S., 343.
    There is no evidence of an acceptance of the check by the bank. Under the circumstances the paying teller was the agent of the plaintiff and not of the bank. Morrow vs. James, 3 Mackey, 27; S. C., 4 Mackey, 59. See also First Nat. Bank vs. Whitman, supra.
    
   Mr. Justice James

delivered the opinion of the Court:

This is an action for money had and received to the use of the plaintiff, based on the following case:

On the 16th of May, 1884, the plaintiff went to the bank at about half-past three and, although the bank had closed for the day, was admitted to a back room where he found the paying teller, Mr. Drinkard. Explaining that he was obliged to go to New York that evening and would need the money, he handed to the paying teller two checks drawn on the bank by one George H. Levis, one of them dated on that day, the other on the 18th of May, and each for $1,000. The paying teller brought from his desk in the banking room the money for the check dated on the 16th, and then called the plaintiff’s attention to the fact that the other check was post-dated. The plaintiff explained that he would not be in the city on the 18th; and the paying teller thereupon kept the post-dated check, saying that he would carry it to the plaintiff’s credit on the 19th, the 18th being Sunday, and that the plaintiff could check against it. He then requested the plaintiff to write his name in what was called the Signature Book, which was .done.

The plaintiff offered evidence tending to show that at the opening of the bank on the 19th the paying teller still had the check of the 18th in his possession; that at that time there was a deposit to the credit of Levis, unappropriated and subject to the payment of the check, amounting to $5,083; that on that day the bank paid out, on other checks of the same drawer, to different persons various sums amounting to $5,420, some .of these checks being dated of that day; that among the payments so made were $1,590 on two New York drafts payable to the bank which had been cashed by the bank and had not been paid in New York; that is to say, that the bank had paid that sum to itself out of the deposit. The check left with the paying-teller by the plaintiff was returned to him on the 23d of May duly protested, the notary’s certificate stating that it had been presented at the bank for payment at the request of the hank.

No evidence was offered on the part of the defendant, and the Court instructed the jury to find for the defendant.

It was urged at the argument in this Court, on the part of the defendant, that the paying teller was not authorized by his office to receive and give credit for the check; that he, therefore, acted, in whatever was done, as agent for the plaintiff, and that if he did not seasonably present the check so as to get it cashed by the bank, it was plaintiff’s misfortune in employing a careless agent.

The notary’s certificate is evidence of the facts stated in it; and it thereby appears the check was protested at the request of the bank. It follows that the bank treated the check as being in its possession for the collection and thus recognized and ratified the paying teller’s act of receiving it. For all the purposes of the transaction it adopted him as a receiving teller, and the check must be held to have been originally received by the bank for collection. The bank was bound, therefore, by the paying teller undertaking to place the check to plaintiff’s credit.

We think this case clearly comes within the principle of Kilsby vs. Williams, 5 Barn. & Aid., 815, where it was held that the defendant, a banker, having received a check and charged himself with the duty of applying to it any money of the drawer which should come in, was bound to give preference to that check over its own claim for a balance clue from the drawer.

Judgment is reversed, and the case is remanded for a new trial.  