Ward v. State Bank , 52 Mont. 328 ( 1916 )

MR. JUSTICE SANNER

delivered the opinion of the court.

On November 25, 1912, the plaintiff, a general merchant of Tates, Montana, drew his check for $25.55 upon the defendant, a state banking corporation, payable to Kelly-How-Thompson [1] Company, of Duluth, Minneapolis. The check was sent to the payee, and thereafter, through the Clearing-house Association of Helena and the Northern Express Company presented for payment on or about December 4, 1912. Payment was refused, although the plaintiff had, at the time it was drawn and at the time it was presented for payment, ample funds in the defendant bank to pay the same. This action was brought for damages on account of such refusal. Issues were joined, and the cause was tried to a jury, who found for the plaintiff. Judgment was entered on the verdict, and, defendant’s motion for new trial being denied, these appeals are the result.

The principal contention is that prejudicial error occurred in certain rulings touching the measure of plaintiff’s recovery, the case being tried and submitted on the theory that substantial damages, temperately measured, might be awarded notwithstanding plaintiff’s failure to submit any evidence of tangible loss. There was no error in this. (Crites v. Security State Bank, ante, p. 121, 155 Pac. 970.)

The other assignments present no ground for reversal. The judgment and order appealed from are therefore affirmed.

Affirmed.

Mr. Chibe Justice Brantly and Mr. Justice Holloway concur.