Herrin v. Franklin County Bank

Bennett, J*

The object of this action is to recover damages which the plaintiff claims to have sustained by reason of the mistaken information given to him in regard to the amount of a certain sum of money which had been deposited with the bank for his use. This is not a case of fraud or had faith in the teller of the bank, but of pure mistake, and the question is, can this mistake be made the ground of an action against the bank, even going upon the ground that the act of the teller is to be regarded as the act of the bank ? The most that can be made of the case is, that it was the representation of a fact which turned out to be incorrect.

It may be true that the plaintiff acted on the information cokh municated to him by the teller, and may have been put to some trouble and expense by reason of the mistaken information which he received from the teller, but it is hot damage alone that gives a right of action.

To' make a representation which works an injury or damage, actionable, there must be a fraud, or the representation must amount to a warranty, express or implied. The case itself negates all fraud, and it is not a case of implied warranty. Though it may bo expected of banks and of men of business, that their books will show the true amounts of money received by them, from time to time, yet it would be going too far to say that the law would raise an implied warranty against all mistakes. The true sum was indorsed upon the note, and the mistake in entering the sum on the books of the bank, was probably occasioned by the teller in writing the word two, when he intended to write four.

There being no implied warranty against mistakes, no action can be maintained against the bank upon any supposed negligence. The case in principle is like the casé where a person gives mistaken information in regard to the pecuniary situation of a third person, by means of which such third person obtains a credit. •In such a case, though the person inquired of is told the object of the inquiry, and that there is an intention to act upon the information received, still, no action will lie for the misinformation if given in good faith, although it turns out incorrect and occasions a damage to the party trusting to it. A legal injury and a damage must both concur to give an action, and we think this is not a case where the plaintiff can be said to have sustained a legal injury.

The result is that the judgment is reversed and cause remanded*