checks as possible, to the extent of imputation of insolvency on a trader, the plaintiff's account.

the action lies without proof of speIn Weiner v. North Penn Bank cial damage.” (1916) 65 Pa. Super. Ct. 290, it ap- In Larios v. Gurety (1873) L. R. 5 peared that the plaintiff, a shoe deal- P. C. (Eng.) 346, it appeared that the er, had made a deposit of $350 in cash plantiff below, Bonany, was an exportwith the defendant bank, and was er of cork, bark, and other products, credited with it in his pass book. It and the defendants below, Larios appeared that through an error the Brothers, were his bankers. The name on the deposit slip was spelled, plaintiff had opened an account with “J. Werner," and the amount credited the defendants by giving them certain to the latter's account. Thereafter,

security in the form of conditional the plaintiff drew checks against this sales of his property, and drew a check amount, and the bank refused payment payable to the order of a third person on the ground that the maker had no

on his account with the defendants. account at the bank. It was held that

The check was dishonored, and the the plaintiff was entitled to substan- plaintiff brought a suit for the specific tial damages for the refusal of the performance of the contract. It was bank to pay the plaintiff's checks,

held that a court of equity did not though he did not and could not prove have jurisdiction to decree the specific an actual loss, precisely measurable performance of an agreement to pay in dollars and cents.

money, and the form of the action was In J. M. James Co. y. Continental Nat. changed to one for damages for a Bank (1900) 105 Tenn. 1, 51 L.R.A. breach of contract. It was held that 255, 80 Am. St. Rep. 857, 58 S. W. 261, the plaintiff was entitled to recover it was held that the defendant bank any actual damage he had sustained was liable in "temperate" substantial by reason of the refusal to pay the damages for a refusal to pay the plain- check, and also general substantial tiff's checks, when there were suffi- damages for the injury to his credit cient funds in the bank to make the and business standing, which would payment, and that the plaintiff, being naturally result from a breach of such a merchant, was conclusively pre- a contract. sumed to be injured in his business In Fleming v. Bank of New Zealand by such refusal, and need not allege [1900] A. C. (Eng.) 577, 69 L. J. P. C. or prove special damage in order to N. S. 120, 83 L. T. N. S. 1, 16 Times L. recover substantial damages.

R. 468, it was held that the plaintiff, a In Rolin v. Steward (1854) 14 C. B. sheep dealer, was entitled to substan595, 139 Eng. Reprint, 245, it appeared tial damages for the refusal of the dethat the defendant bank had refused fendant bank to honor his check, when to honor the plaintiff's drafts and he had sufficient funds at the bank checks, although he had sufficient to pay the check. It was held, howfunds in the bank to make payment. ever, that the loss of custom and credit The plaintiff was a merchant and from particular individuals could not shipowner. It was held that the plain- be shown in estimating the damages tiff was entitled to recover substantial sustained by the plaintiff. damages without proof of special dam- In Marzetti v. Williams (1829) 1 age, the court saying: “And, when it Barn. & Ad. 415, 109 Eng. Reprint, 842, is alleged and proved that the plaintiff 9 L. J. K. B. 42, 3 Eng. Rul. Cas. 746. is a trader, I think it is equally clear It was held that a banker was liable in that the jury, in estimating the dam- nominal damages to a merchant and ages, may take into their considera- ship broker for a refusal to pay his tion the natural and necessary conse- check when presented. It appeared quences which must result to the that the depositor had sufficient funds plaintiff from the defendant's breach to meet the check, but the entry showof contract; just as in the case of an ing that a deposit had been made that action for a slander of a person in the day to his credit had not yet been way of his trade, or in the case of an made in the book to which the bank

a

er's clerk referred when the check was actually sustained, as there was no presented and refused. The check charge or proof of malice or of any was paid the next day.

wilful or wrongful act on the part In Wood V. American Nat. Bank of the defendant, and no allegation (1902) 100 Va. 306, 40 S. E. 931, it was or proof of special damage. The diheld that the plaintiff, a grain broker rection of a verdict for 34 cents by the and buyer, was entitled to actual dam- trial judge was said to be error, but, ages against the defendant for refus- as the defendant did not appeal, the ing to honor the plaintiff's check when judgment was affirmed. presented for payment, when the In T. B. Clark Co. v. Mt. Morris plaintiff had sufficient money in the Bank (1903) 85 App. Div. 362, 83 N. Y. bank to pay the check. It was also Supp. 447, affirmed in (1905) 181 N. Y. held that the plaintiff was entitled to 533, 73 N. E. 1133, it appeared that introduce evidence of malice, bad the defendant bank, through a mistake faith, wilful negligence, or other facts of its bookkeeper, refused payment of which would enable him to recover ex- a check and a note of the plaintiff, emplary damages, and the action of although the plaintiff had sufficient the court in excluding such evidence funds in the bank to pay both the was held to be error.

check and the note. It was held that, 0. Rule in New York,

in order for the plaintiff to recover It is held in New York, however,

substantial damages, it must be shown that only the damages actually proved just cause or excuse, or with improper

that the bank acted wilfully, without may be recovered for the dishonor of

motives. Since it appeared that the a check, and no presumption of dam

plaintiff had sustained no special damage arises because the plaintiff is a merchant or trader. Burroughs V.

age, and it was admitted that the reTradesmen's Nat. Bank (1895) 156

fusal to pay was the result of mistake,

and therefore not done through malice, N. Y. 663, 50 N. E. 1115, affirming

it was held that the court below was (1895) 87 Hun, 6, 33 N. Y. Supp. 864;

correct in restricting the plaintiff's T. B. Clark Co. v. Mt. Morris Bank (1903) 85 App. Div. 362, 83 N. Y.

recovery to nominal damages.

In Levine v. State Bank (1913) 80 Supp. 447, affirmed in (1905) 181 N. Y.

Misc. 524, 141 N. Y. Supp. 596, it was 533, 73 N. E.. 1133; Levine v. State Bank (1913) 80 Misc. 524, 141 N. Y.

held that a bank was liable in damages Supp. 596; Meyer v. Hudson Trust Co.

in an action on contract for a refusal (1917) 181 App. Div. 69, 168 N. Y.

to pay checks of the plaintiff, when Supp. 387; Schein v. Public Bank the plaintiff had sufficient funds in the (1917) 101 Misc. 499, 167 N. Y. Supp.

bank to make payment. It was held 384; Wildenberger v. Ridgewood Nat.

that the plaintiff might prove an inBank (1919) 187 App. Div. 320, 175 jury to his credit as a result of the N. Y. Supp. 430; Gutman v. Bronx wrongful refusal of the bank, and that Borough Bank (1919) 173 N. Y. Supp. the trial court had erred in excluding 477. But see Davis v. Standard Nat. such evidence. Bank (1900) 50 App. Div. 210, 63 N. Y. In Meyer v. Hudson Trust Co. Supp. 764.

(1917) 181 App. Div. 69, 168 N. Y. In Burroughs v. Tradesmen's Nat. Supp. 387, it was held that, where a Bank (1895) 87 Hun, 6, 33 N. Y. Supp. bank refuses payment of a check 864, affirmed in (1895) 156 N. Y. 663, wrongfully, the depositor is entitled 50 N. E. 1115, it appeared that the de- to recover only the amount of damages fendant bank had refused to honor the he can prove actually to have susplaintiff's check, although he had a tained, and only such damages as were sufficient account at the bank. This within the contemplation of the paroccurred through an error, and the ties at the time the contract by which check was paid five days later when the defendant agreed to honor the the error was discovered. It was held plaintiff's checks was made. that the plaintiff was entitled to re- In Schein v. Public Bank (1917) cover only the amount of damages 101 Misc. 499, 167 N. Y. Supp. 384, it

appeared that the defendant bank re- bank on which to draw. The jury fused to honor a check of the plaintiff, found a verdict for the plaintiff for although he had sufficient funds in the substantial damages, the elements of bank to meet it. As a result of the damage submitted being the actual dishonor of the check, the plaintiff was logs sustained by the plaintiff in prosubsequently refused credit by the test fees and making other arrangeperson in whose favor the check had ments for the payment of the checks, been drawn. It was held that the his loss of credit, and mental suffering plaintiff was entitled to have the ques- and humiliation. The latter element tion of the amount of damage he had of damage was allowed because the suffered submitted to the jury. action was brought in tort, and not in

In Wildenberger v. Ridgewood Nat. contract. It was held, on appeal, that Bank (1919) 187 App. Div. 320, 175 the instructions as to damages were N. Y. Supp. 430, it appeared that the correct, but the case was reversed on plaintiff's wife filed a complaint with other grounds. the bank, claiming ownership of one

III. Check of nontrader. half the plaintiff's account. The account was marked on the books, "Held

It is held in some jurisdictions that subject to legal papers." Subse

substantial damages will be presumed quently the plaintiff drew checks for

in case of the dishonor of the check more than half the amount of his ac

of a nontrader. Columbia Nat. Bank count, which were returned, marked,

v. MacKnight (1907) 29 App. D. C. "Account closed.” The plaintiff con

580, 10 Ann. Cas. 897; Jaselli v. Riggs ceded he had suffered no actual dam

Nat. Bank (1911) 36 App. D. C. 159, age, but claimed he was entitled to

31 L.R.A.(N.S.) 763, Ann. Cas. 1912C, substantial or punitive damages. It

1119; American Nat. Bank v. Morey was held that as the bank acted with

(1902) 113 Ky. 862, 58 L.R.A. 956, 101 out malice, express or implied, and

Am. St. Rep. 379, 69 S. W. 759; Comdid not refuse payment of the checks

mercial Nat. Bank v. Latham (1911) from any improper motive, the plain- 29 Okla. 88, 116 Pac. 197, Ann. Cas. tiff could recover only nominal dam

1913A, 999; Stevens v. Market Street ages, in the absence of proof of actual

Title & T. Co. (1916) 65 Pa. Super. Ct. damage.

288. In Gutman v. Bronx Borough Bank

In Columbia Nat. Bank V. Mac(1919) 173 N. Y. Supp. 477, it was

Knight (1907) 29 App. D. C. 580, held that a bank was liable for dis

10 Ann. Cas. 897, it was held that a honoring a check of the plaintiff, be- physician was entitled to substantial cause of the negligence of an em

damages from the defendant bank for ployee of the bank in not crediting the

a wrongful refusal to honor his account of the plaintiff with a deposit.

checks, when he had sufficient funds It appeared that the dishonored check

at the bank to meet them. It was said

that the fact that the plaintiff was not had been made out in favor of the plaintiff's brokers, and that, when

a merchant or trader did not prevent

him from recovering substantial dampayment was refused by the bank, they sold out the collateral held by them,

ages, as it must be presumed that the to the damage of the plaintiff.

dishonor of a check by a bank must

cause injury to the plaintiff's credit, In Davis v. Standard Nat. Bank

the court saying: “A bank customer's (1900) 50 App. Div. 210, 63 N. Y.

check cannot possibly be wrongfully Supp. 764, it appeared that the defend

refused payment without some imant bank refused to honor four checks peachment of his credit, which must of the plaintiff. The deposit of the .

in fact be an actual injury, though plaintiff consisted of a note which he cannot, from the nature of the case, he claimed the bank had discounted, furnish satisfactory and distinct proof while the bank claimed that the note of the injury. If the plaintiff be able, had been received for collection only, he may show special damage, but if and, as it had not been paid at matur- he be not able, the jury may give such ity, the plaintiff had no funds in the temperate damages as they may con

as

ceive to be a reasonable compensation malice or improper motives on the part for the injury which he must have of the bank in refusing payment of sustained; and the extent of the in- the check, nor could the plaintiff rejury is within the peculiar province cover for a nervous chill contracted as of the jury to determine. Indeed, it a result of the protesting of the check, appears he may recover substantial as that was not the natural result of damages for such refusal. Although the protest of the check. in this case the plaintiff was a phy- In Commercial Nat. Bank v. Latham sician, and not a trader, we think the (1911) 29 Okla. 88, 116 Pac. 197, Ann. jury should not have been confined to Cas. 1913A, 999, a judgment in favor nominal damages only.'

of the plaintiff for $1,009 was susIn Jaselli v. Riggs Nat. Bank (1911) tained compensatory damages 36 App. D. C. 159, 31 L.R.A.(N.S.) against the defendant bank, for a re763, Ann. Cas. 1912C, 119, it appeared fusal to honor her draft when she that the defendant refused to honor had sufficient funds in the bank to the plaintiff's check, on the ground meet it. There was no evidence of of insufficient funds. The insufficien- special damage, except $69, which cy was caused by the bank's paying plaintiff's husband had spent in going out of the fund to the credit of the to the bank and having the deposit replaintiff, the amount of certain postal leased from a wrongful attachment by money orders theretofore deposited by the bank. the plaintiff, as it was claimed by the In Stevens v. Market Street Title & postal authorities that these orders T. Co. (1916) 65 Pa, Super. Ct. 288, it had been indorsed without the consent appeared that the defendant bank had of the payee. The bank charged the refused to pay certain checks of the amounts so paid out against the ac- plaintiff for small amounts, on the count of the plaintiff, without making ground that there were “not sufficient a diligent effort to locate the plain- funds." This mistake on the part of tiff and inform him of what had been the bank was due to an error in bookdone, although the bank could easily keeping, by which a deposit made by have located him through a postal in- the plaintiff had been credited to anspector, who knew his address, and other depositor of a similar name. who came to the bank several times The plaintiff was a woman and was regarding the orders. It was held not engaged in any business. It was that, under these circumstances, it held that the plaintiff was entitled to was a question for the jury whether recover substantial damages, the the bank had used due diligence in amount of which was a question for endeavoring to inform the plaintiff of the jury. the adverse claim; and, in refusing to But in Third Nat. Bank V. Ober honor checks of the plaintiff prior to (1910) 102 C. C. A. 178, 178 Fed. 678, giving him notice of the adverse claim, it was held that where a bank refused the bank acted at its peril.

to honor the check of a depositor who In American Nat. Bank V. Morey had sufficient funds in the bank to (1902) 113 Ky. 862, 58 L.R.A. 956, 101 meet the check, and the depositor was Am. St. Rep. 379, 69 S. W. 759, it was not a merchant or trader, special damheld that the plaintiff was entitled to ages would not be presumed, but must recover “temperate” damages against be proved, as no loss of credit or other the defendant bank, for its refusal to special damage would ordinarily folhonor her checks when she had suffi- low the dishonor of a person not encient funds in the bank to pay the gaged in trade. It was, therefore, checks. It was held that punitive held that only nominal damages and damages, however, could not be re- protest fees should have been allowed. covered, as there was no evidence of

B. F. D.

DENVER & SOUTH PLATTE RAILWAY COMPANY, Piff. in Err.,

V.
CITY OF ENGLEWOOD.

Colorado Supreme Court (In Banc) - July 8, 1916.

(62 Colo. 229, P.U.R.1916E, 134, 161 Pac. 151.) Carrier rates power of municipality to fix.

1. Mere implied power conferred upon a municipality to grant street railway franchises by a statutory provision that such grant shall not be otherwise than by ordinance does not include power to fix the rates so as to prevent their subsequent increase by the Public Service Commission.

[See note on this question beginning on page 968.] Injunction against raising rates - a plain, speedy, and adequate remedy is remedy at law.

afforded by the statute creating the 2. Injunction does not lie to prevent Commission, through appeal to the subreach of a franchise ordinance fixing preme court for determination of the the fares of a street railway company lawfulness of the order of the Commisunder authority of the Public Service sion. Commission to raise the rates, where [See 14 R. C. L. 339.]

(Gabbert, Ch. J., and Teller, J., dissent.)

.

ERROR to the District Court for Arapahoe County (Class, J.) to review a judgment in favor of plaintiff in an action brought to compel the enforcement of an ordinance regulating rates of fares. Reversed.

The facts are stated in the opinion of the court.

Messrs. W. H. Caley and F. W. Varn- and the issue was determined on the ey for plaintiff in error.

pleadings. There is no dispute as to Messrs. R. H. Blackman and Crump the facts. & Allen, for defendant in error:

The complaint alleges that the A franchise between a municipality and a street railway is a contract bind city of Englewood, defendant in ering upon both of the parties thereto.

ror, on the 6th day of December, Clarksburg Electric Light Co. v.

1906, and while it was an incorpoClarksburg, 47 W. Va. 739, 50 L.R.A. rated town, by ordinance granted to 142, 35 S. E. 994; Old Colony Trust the grantors of the Denver & South Co. v. Atlanta, 83 Fed. 39; Minneapo- Platte Railway Company, plaintiff lis v. Minneapolis Street R. Co. 215 U. in error, a franchise for the operS. 417, 54 L. ed. 259, 30 Sup. Ct. Rep. ation of a street railway upon and 118; Índianapolis v. Navin, 151 Ind.

across certain of its streets. That 139, 41 L.R.A. 337, 47 N. E. 525, 51

§ 6 of said ordinance fixed the rates N. E. 80. Relief by injunction is the proper city, and further provided by reason

of fares to be charged within said remedy. Minneapolis v. Minneapolis Street R.

able regulation for the sale of Co. 215 U. S. 417, 54 L. ed. 259, 30 Sup. coupon tickets which shall entitle Ct. Rep. 118; Detroit v. Detroit Citi- passengers taking passage on the zens' Street R. Co. 184 U. S. 368, 46 cars of said grantees, their succesL. ed. 592, 22 Sup. Ct. Rep. 414.

sors or assigns, going north on said Messrs. Fred Farrar, Attorney Gen- Broadway at or north of Quincy eral, Frank C. West, Assistant Attor

avenue, to be transported the same ney General, and M. H. Aylesworth

as regular tramway passengers, for Public Utilities Commission.

without extra fare, upon the cars of Scott, J., delivered the opinion of the Denver City Tramway Company the court:

at Hampden avenue, and also enThis is an action in injunction, titling passengers going south on