Blackwell v. First Nat'l Bank of Cola

December 11, 1937. No good reason appears why a rehearing in this case should be granted. The Court, however, withdraws the opinion heretofore filed and substitutes in lieu thereof the following:

This appeal is from an order of the County Judge overruling a demurrer to the answer. The following facts appear: On May 14, 1936, one J.C. Wertz drew his check on the defendant bank in the sum of $130.00. It was made payable to Blackwell Smith, attorneys, or order, and delivered to them by the maker. It was then endorsed by the plaintiffs, the named payees, preparatory to depositing it to their account in a bank other than the defendant. On the same day, however, the check, bearing such indorsement, was stolen from the office of the plaintiffs and presented for payment by a person unknown to the bank, but who represented himself to be one of the plaintiffs, and the amount specified in the check was paid to such person by the defendant.

The bank set up two defenses to the cause of action alleged in the complaint. The plaintiffs demurred on the ground that the answer did not state facts sufficient to constitute a defense, the demurrer, for different reasons and in certain particulars stated therein, being specifically directed to each defense separately.

We have considered with care the entire record, giving especial attention, of course, to the pleadings. We are satisfied that the conclusions reached by the County Judge are correct, except as to the first defense set up in the answer of the defendant. As to this defense, we think he should have sustained the demurrer. Certain facts alleged in the complaint are presumptively within the knowledge of the defendant, or are such as may be readily ascertained by it. Its denial, therefore, as to such alleged facts, should be in positive form.

In overruling the demurrer to the first defense of the answer, therefore, the order appealed from is reversed; in all other respects it is affirmed.

Leave is granted the defendant, however, to move before the Judge of the Richland County Court, within ten days after the remittitur herein goes down, for an order permitting to amend its answer, so that it may present its first defense on the merits.

And it is so ordered.

MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.

MR. JUSTICE CARTER did not participate on account of illness.