McMillan v. Citizens & Southern National Bank , 37 Ga. App. 813 ( 1928 )

Broyles, C. J.

(After stating the foregoing facts.) The petition, properly construed, bases the right to recover upon an alleged express acceptance by the defendant of the check or draft, as shown by its letter attached to the petition as exhibit C. The theory of recovery (argued in the brief of counsel for the plaintiff in error) upon the ground that the defendant bank was the. collecting agent for the plaintiff, and that it is liable for a.breach of its duties as such agent, is not set forth in the petition, and can not be considered by this court. It clearly appears from the language of the defendant’s letter (exhibit C) that the check or draft drawn upon it was not accepted. The letter stated merely that when the draft was paid by the drawer bank the amhunt thereof would be credited as directed by the plaintiff. It is well settled that a bank upon which a check is drawn is not liable to the holder thereof unless it has accepted or certified the check. The fact that the drawer bank may possess sufficient funds of the drawer to pay the check is immaterial. Negotiable Instruments Law (Ga. L. 1934, pp. 136, 163), sec. 189; 7 C. J. 698, Banks & Banking, § 436. Furthermore, even if the letter in question could possibly be construed as an acceptance, it was written on a paper other than the check, and was not written until after the plaintiff received the check. An acceptance written on a paper other than the bill itself does not bind the acceptor except in favor of one to whom it is shown and who, on the faith thereof, receives the bill for value. Negotiable Instruments Law, supra, sec. 134; Citizens Bank v. Willing, 109 Wash. 464 (186 Pac. 1072); Jones v. Crumpler, 119 Va. 143 (89 S. E. 333); Eakin v. Citizens State Bank (Kan.), 72 Pac. 874. The court did not err in dismissing the petition upon demurrer.

Judgment affirmed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.