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checks as possible, to the extent of the plaintiff's account.

In Weiner v. North Penn Bank (1916) 65 Pa. Super. Ct. 290, it appeared that the plaintiff, a shoe dealer, had made a deposit of $350 in cash with the defendant bank, and was credited with it in his pass book. It appeared that through an error the name on the deposit slip was spelled,

J. Werner," and the amount credited to the latter's account. Thereafter, the plaintiff drew checks against this amount, and the bank refused payment on the ground that the maker had no account at the bank. It was held that the plaintiff was entitled to substantial damages for the refusal of the bank to pay the plaintiff's checks, though he did not and could not prove an actual loss, precisely measurable in dollars and cents.

In J. M. James Co. v. Continental Nat. Bank (1900) 105 Tenn. 1, 51 L.R.A. 255, 80 Am. St. Rep. 857, 58 S. W. 261, it was held that the defendant bank was liable in "temperate" substantial damages for a refusal to pay the plaintiff's checks, when there were sufficient funds in the bank to make the payment. and that the plaintiff, being a merchant, was conclusively presumed to be injured in his business by such refusal, and need not allege or prove special damage in order to recover substantial damages.

imputation of insolvency on a trader, the action lies without proof of special damage."

In Larios v. Gurety (1873) L. R. 5 P. C. (Eng.) 346, it appeared that the plantiff below, Bonany, was an exporter of cork, bark, and other products, and the defendants below, Larios Brothers, were his bankers. The plaintiff had opened an account with the defendants by giving them certain security in the form of conditional sales of his property, and drew a check payable to the order of a third person on his account with the defendants. The check was dishonored, and the plaintiff brought a suit for the specific. performance of the contract. It was held that a court of equity did not have jurisdiction to decree the specific performance of an agreement to pay money, and the form of the action was changed to one for damages for a breach of contract. It was held that the plaintiff was entitled to recover any actual damage he had sustained by reason of the refusal to pay the check, and also general substantial damages for the injury to his credit and business standing, which would naturally result from a breach of such a contract.

In Rolin v. Steward (1854) 14 C. B. 595, 139 Eng. Reprint, 245, it appeared that the defendant bank had refused to honor the plaintiff's drafts and checks, although he had sufficient funds in the bank to make payment. The plaintiff was a merchant and shipowner. It was held that the plaintiff was entitled to recover substantial damages without proof of special damage, the court saying: "And, when it is alleged and proved that the plaintiff is a trader, I think it is equally clear that the jury, in estimating the damages, may take into their consideration the natural and necessary consequences which must result to the plaintiff from the defendant's breach of contract; just as in the case of an action for a slander of a person in the way of his trade, or in the case of an

In Fleming v. Bank of New Zealand [1900] A. C. (Eng.) 577, 69 L. J. P. C. N. S. 120, 83 L. T. N. S. 1, 16 Times L. R. 468, it was held that the plaintiff, a sheep dealer, was entitled to substan tial damages for the refusal of the defendant bank to honor his check, when he had sufficient funds at the bank to pay the check. It was held, however, that the loss of custom and credit from particular individuals could not be shown in estimating the damages sustained by the plaintiff.

In Marzetti v. Williams (1829) 1 Barn. & Ad. 415, 109 Eng. Reprint, 842, 9 L. J. K. B. 42, 3 Eng. Rul. Cas. 746. It was held that a banker was liable in nominal damages to a merchant and ship broker for a refusal to pay his check when presented. It appeared that the depositor had sufficient funds to meet the check, but the entry showing that a deposit had been made that day to his credit had not yet been made in the book to which the bank

er's clerk referred when the check was presented and refused. The check was paid the next day.

In Wood v. American Nat. Bank (1902) 100 Va. 306, 40 S. E. 931, it was held that the plaintiff, a grain broker and buyer, was entitled to actual damages against the defendant for refusing to honor the plaintiff's check when presented for payment, when the plaintiff had sufficient money in the bank to pay the check. It was also held that the plaintiff was entitled to introduce evidence of malice, bad faith, wilful negligence, or other facts which would enable him to recover exemplary damages, and the action of the court in excluding such evidence was held to be error.

c. Rule in New York.

It is held in New York, however,

that only the damages actually proved may be recovered for the dishonor of a check, and no presumption of damage arises because the plaintiff is a merchant or trader. Burroughs v. Tradesmen's Nat. Bank (1895) 156 N. Y. 663, 50 N. E. 1115, affirming (1895) 87 Hun, 6, 33 N. Y. Supp. 864; T. B. Clark Co. v. Mt. Morris Bank (1903) 85 App. Div. 362, 83 N. Y. Supp. 447, affirmed in (1905) 181 N. Y. 533, 73 N. E.. 1133; Levine v. State Bank (1913) 80 Misc. 524, 141 N. Y. Supp. 596; Meyer v. Hudson Trust Co. (1917) 181 App. Div. 69, 168 N. Y. Supp. 387; Schein v. Public Bank (1917) 101 Misc. 499, 167 N. Y. Supp. 384; Wildenberger v. Ridgewood Nat. Bank (1919) 187 App. Div. 320, 175 N. Y. Supp. 430; Gutman v. Bronx Borough Bank (1919) 173 N. Y. Supp. 477. But see Davis v. Standard Nat. Bank (1900) 50 App. Div. 210, 63 N. Y. Supp. 764.

In Burroughs v. Tradesmen's Nat. Bank (1895) 87 Hun, 6, 33 N. Y. Supp. 864, affirmed in (1895) 156 N. Y. 663, 50 N. E. 1115, it appeared that the defendant bank had refused to honor the plaintiff's check, although he had a sufficient account at the bank. This occurred through an error, and the check was paid five days later when the error was discovered. It was held that the plaintiff was entitled to recover only the amount of damages

actually sustained, as there was no charge or proof of malice or of any wilful or wrongful act on the part of the defendant, and no allegation or proof of special damage. The direction of a verdict for 34 cents by the trial judge was said to be error, but, as the defendant did not appeal, the judgment was affirmed.

In T. B. Clark Co. v. Mt. Morris Bank (1903) 85 App. Div. 362, 83 N. Y. Supp. 447, affirmed in (1905) 181 N. Y. 533, 73 N. E. 1133, it appeared that the defendant bank, through a mistake of its bookkeeper, refused payment of a check and a note of the plaintiff, although the plaintiff had sufficient funds in the bank to pay both the check and the note. It was held that, in order for the plaintiff to recover substantial damages, it must be shown that the bank acted wilfully, without just cause or excuse, or with improper motives. Since it appeared that the plaintiff had sustained no special damage, and it was admitted that the refusal to pay was the result of mistake, and therefore not done through malice, it was held that the court below was correct in restricting the plaintiff's recovery to nominal damages.

In Levine v. State Bank (1913) 80 Misc. 524, 141 N. Y. Supp. 596, it was held that a bank was liable in damages in an action on contract for a refusal to pay checks of the plaintiff, when the plaintiff had sufficient funds in the bank to make payment. It was held that the plaintiff might prove an injury to his credit as a result of the wrongful refusal of the bank, and that the trial court had erred in excluding such evidence.

In Meyer v. Hudson Trust Co. (1917) 181 App. Div. 69, 168 N. Y. Supp. 387, it was held that, where a bank refuses payment of a check wrongfully, the depositor is entitled to recover only the amount of damages he can prove actually to have sustained, and only such damages as were within the contemplation of the parties at the time the contract by which the defendant agreed to honor the plaintiff's checks was made.

In Schein v. Public Bank (1917) 101 Misc. 499, 167 N. Y. Supp. 384, it

appeared that the defendant bank refused to honor a check of the plaintiff, although he had sufficient funds in the bank to meet it. As a result of the dishonor of the check, the plaintiff was subsequently refused credit by the person in whose favor the check had been drawn. It was held that the plaintiff was entitled to have the question of the amount of damage he had suffered submitted to the jury.

In Wildenberger v. Ridgewood Nat. Bank (1919) 187 App. Div. 320, 175 N. Y. Supp. 430, it appeared that the plaintiff's wife filed a complaint with the bank, claiming ownership of one half the plaintiff's account. The account was marked on the books, "Held subject to legal papers." Subsequently the plaintiff drew checks for more than half the amount of his account, which were returned, marked, "Account closed." The plaintiff conceded he had suffered no actual damage, but claimed he was entitled to substantial or punitive damages. It was held that as the bank acted without malice, express or implied, and did not refuse payment of the checks from any improper motive, the plaintiff could recover only nominal damages, in the absence of proof of actual damage.

bank on which to draw. The jury found a verdict for the plaintiff for substantial damages, the elements of damage submitted being the actual loss sustained by the plaintiff in protest fees and making other arrangements for the payment of the checks, his loss of credit, and mental suffering and humiliation. The latter element of damage was allowed because the action was brought in tort, and not in contract. It was held, on appeal, that the instructions as to damages were correct, but the case was reversed on other grounds.

In Gutman v. Bronx Borough Bank (1919) 173 N. Y. Supp. 477, it was held that a bank was liable for dishonoring a check of the plaintiff, because of the negligence of an employee of the bank in not crediting the account of the plaintiff with a deposit. It appeared that the dishonored check had been made out in favor of the plaintiff's brokers, and that, when payment was refused by the bank, they sold out the collateral held by them, to the damage of the plaintiff.

In Davis v. Standard Nat. Bank (1900) 50 App. Div. 210, 63 N. Y. Supp. 764, it appeared that the defendant bank refused to honor four checks of the plaintiff. The deposit of the plaintiff consisted of a note which he claimed the bank had discounted, while the bank claimed that the note had been received for collection only, and, as it had not been paid at maturity, the plaintiff had no funds in the

III. Check of nontrader.

It is held in some jurisdictions that substantial damages will be presumed in case of the dishonor of the check of a nontrader. Columbia Nat. Bank v. MacKnight (1907) 29 App. D. C. 580, 10 Ann. Cas. 897; Jaselli v. Riggs Nat. Bank (1911) 36 App. D. C. 159, 31 L.R.A. (N.S.) 763, Ann. Cas. 1912C, 1119; American Nat. Bank v. Morey (1902) 113 Ky. 862, 58 L.R.A. 956, 101 Am. St. Rep. 379, 69 S. W. 759; Commercial Nat. Bank v. Latham (1911) 29 Okla. 88, 116 Pac. 197, Ann. Cas. 1913A, 999; Stevens v. Market Street Title & T. Co. (1916) 65 Pa. Super. Ct. 288.

In Columbia Nat. Bank v. MacKnight (1907) 29 App. D. C. 580, 10 Ann. Cas. 897, it was held that a physician was entitled to substantial damages from the defendant bank for a wrongful refusal to honor his checks, when he had sufficient funds at the bank to meet them. It was said that the fact that the plaintiff was not a merchant or trader did not prevent him from recovering substantial damages, as it must be presumed that the dishonor of a check by a bank must cause injury to the plaintiff's credit, the court saying: "A bank customer's check cannot possibly be wrongfully refused payment without some impeachment of his credit, which must in fact be an actual injury, though he cannot, from the nature of the case, furnish satisfactory and distinct proof of the injury. If the plaintiff be able, he may show special damage, but if he be not able, the jury may give such temperate damages as they may con

ceive to be a reasonable compensation for the injury which he must have sustained; and the extent of the injury is within the peculiar province of the jury to determine. Indeed, it appears he may recover substantial damages for such refusal. Although in this case the plaintiff was a physician, and not a trader, we think the jury should not have been confined to nominal damages only."

In Jaselli v. Riggs Nat. Bank (1911) 36 App. D. C. 159, 31 L.R.A. (N.S.) 763, Ann. Cas. 1912C, 119, it appeared that the defendant refused to honor the plaintiff's check, on the ground of insufficient funds. The insufficiency was caused by the bank's paying out of the fund to the credit of the plaintiff, the amount of certain postal money orders theretofore deposited by the plaintiff, as it was claimed by the postal authorities that these orders had been indorsed without the consent of the payee. The bank charged the amounts so paid out against the account of the plaintiff, without making a diligent effort to locate the plaintiff and inform him of what had been done, although the bank could easily have located him through a postal inspector, who knew his address, and who came to the bank several times regarding the orders. It was held that, under these circumstances, it was a question for the jury whether the bank had used due diligence in endeavoring to inform the plaintiff of the adverse claim; and, in refusing to honor checks of the plaintiff prior to giving him notice of the adverse claim, the bank acted at its peril.

In American Nat. Bank v. Morey (1902) 113 Ky. 862, 58 L.R.A. 956, 101 Am. St. Rep. 379, 69 S. W. 759, it was held that the plaintiff was entitled to recover "temperate" damages against the defendant bank, for its refusal to honor her checks when she had sufficient funds in the bank to pay the checks. It was held that punitive damages, however, could not be recovered, as there was no evidence of

malice or improper motives on the part of the bank in refusing payment of the check, nor could the plaintiff recover for a nervous chill contracted as a result of the protesting of the check, as that was not the natural result of the protest of the check.

In Commercial Nat. Bank v. Latham (1911) 29 Okla. 88, 116 Pac. 197, Ann. Cas. 1913A, 999, a judgment in favor of the plaintiff for $1,009 was sustained as compensatory damages against the defendant bank, for a refusal to honor her draft when she had sufficient funds in the bank to meet it. meet it. There was no evidence of special damage, except $69, which plaintiff's husband had spent in going to the bank and having the deposit released from a wrongful attachment by the bank.

In Stevens v. Market Street Title & T. Co. (1916) 65 Pa. Super. Ct. 288, it appeared that the defendant bank had refused to pay certain checks of the plaintiff for small amounts, on the ground that there were "not sufficient funds." This mistake on the part of the bank was due to an error in bookkeeping, by which a deposit made by the plaintiff had been credited to another depositor of a similar name. The plaintiff was a woman and was not engaged in any business. It was held that the plaintiff was entitled to recover substantial damages, the amount of which was a question for the jury.

But in Third Nat. Bank v. Ober (1910) 102 C. C. A. 178, 178 Fed. 678, it was held that where a bank refused to honor the check of a depositor who had sufficient funds in the bank to meet the check, and the depositor was not a merchant or trader, special damages would not be presumed, but must be proved, as no loss of credit or other special damage would ordinarily follow the dishonor of a person not engaged in trade. It was, therefore, held that only nominal damages and protest fees should have been allowed.

B. F. D.

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

V.

CITY OF ENGLEWOOD.

Colorado Supreme Court (In Banc) —July 3, 1916.

(62 Colo. 229, P.U.R.1916E, 134, 161 Pac. 151.)

Carrier rates power of municipality to fix.

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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 remedy at law.

2. Injunction does not lie to prevent breach of a franchise ordinance fixing the fares of a street railway company under authority of the Public Service Commission to raise the rates, where

a plain, speedy, and adequate remedy is afforded by the statute creating the Commission, through appeal to the supreme court for determination of the lawfulness of the order of the Commission.

[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. Varney for plaintiff in error.

Messrs. R. H. Blackman and Crump & Allen, for defendant in error:

A franchise between a municipality and a street railway is a contract binding upon both of the parties thereto.

Clarksburg Electric Light Co. v. Clarksburg, 47 W. Va. 739, 50 L.R.A. 142, 35 S. E. 994; Old Colony Trust Co. v. Atlanta, 83 Fed. 39; Minneapolis v. Minneapolis Street R. Co. 215 U. S. 417, 54 L. ed. 259, 30 Sup. Ct. Rep. 118; Indianapolis v. Navin, 151 Ind. 139, 41 L.R.A. 337, 47 N. E. 525, 51 N. E. 80.

Relief by injunction is the proper remedy.

Minneapolis v. Minneapolis Street R. Co. 215 U. S. 417, 54 L. ed. 259, 30 Sup. Ct. Rep. 118; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368, 46 L. ed. 592, 22 Sup. Ct. Rep. 414.

Messrs. Fred Farrar, Attorney General, Frank C. West, Assistant Attorney General, and M. H. Aylesworth for Public Utilities Commission.

Scott, J., delivered the opinion of the court:

This is an action in injunction,

and the issue was determined on the pleadings. There is no dispute as to the facts.

city of Englewood, defendant in erThe complaint alleges that the ror, on the 6th day of December, 1906, and while it was an incorporated town, by ordinance granted to the grantors of the Denver & South Platte Railway Company, plaintiff in error, a franchise for the operation of a street railway upon and across certain of its streets. That § 6 of said ordinance fixed the rates city, and further provided by reasonof fares to be charged within said able regulation for the sale of coupon tickets which shall entitle passengers taking passage on the cars of said grantees, their successors or assigns, going north on said Broadway at or north of Quincy avenue, to be transported the same as regular tramway passengers, without extra fare, upon the cars of the Denver City Tramway Company at Hampden avenue, and also entitling passengers going south on

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