Moldawer v. Trust Co. of North America

Citations

• 57 Pa. Super. 66
• 1914 Pa. Super. LEXIS 151

Syllabus

<p>Banks and banking — Collection of promissory note — Negligence— Loss of note — Failure to give notice — Practice on appeals.</p> <p>1. Where a person who for a long period has been a depositor in a bank, deposits a promissory note for collection in the same city in which the bank does business, and the bank places the note in the hands of an experienced and competent notary public with direction to collect or protest it for nonpayment, and the notary loses the note, and does not protest it, the bank will not be liable for failure to protest the note, but it will be liable to its depositor if it neglects for months to give him notice of the loss of the note, although such notice was feasible.</p> <p>2. In a suit by the depositor against the bank where there is no averment in the statement, of negligence in failing to notify plaintiff of the loss of the note, but such negligence is shown at the trial without objection, a judgment for the plaintiff will not be reversed after a trial upon the merits, and this is especially so where it appears that the statement in assumpsit specifically alleged an implied agreement on the part of the bank to return the note, and failure to do so.</p> <p>3. In such a suit the defendant is not entitled to binding directions in its favor, because the plaintiff offered no evidence as to the solvency or insolvency of the maker of the note, or any evidence of pecuniary loss, inasmuch as the plaintiff is entitled to recover at least nominal damages.</p> <p>4. If, in such a case, the judgment is reversed, the record will be remitted to the court below with direction to enter such judgment as law and right may require.</p>