(90 So.)

state and county prisoners per day, as provid-pay was on entirely different grounds. The ed for in section 3 hereof." error was without injury. Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 South. 417, Ann. Cas. 1917D, 929.

This act details the duty of the auditor in providing how the sheriff's statement shall be examined and cases cited on the duty of the auditor in general cannot control here. The judgment of the trial court not being in harmony with the views herein expressed, the judgment denying the writ prayed for is reversed, and an order is here made granting the writ of mandamus as prayed for.

This court is urged to give careful consideration to the conclusions reached by the

trial court on the facts, on account of its importance, as affecting the system used by banking institutions in their dealings with depositors, and this we have tried to do in announcing the following conclusions:

When a customer of a banking institution makes a deposit of funds, the bank impliedly makes a contract and guarantees the depositor to return to him a like amount of money, or to pay same out on his order, to the identical person to whom the order is made payable. 3 R. C. L. p. 542, § 171.

Upon this principle is based the safety of the depositors' money, which the bank uses, without interest, until called for. And when a depositor is ignorant and cannot read or write, if the bank accepts the deposit, it is none the less under obligation to see that the depositor's money is paid in accordance with its implied contract. The depositor having proven the deposit, which in this case was admitted, and the demand, which is also admitted, the burden was cast upon the defendant of proving payment, either to the plain

Steiner, Crum & Weil, of Montgomery, for tiff or on her order, and if under the system appellant.

used by the bank there is no evidence of this,

Hill, Hill, Whiting & Thomas, of Montgom- or not sufficient evidence to sustain the burery, for appellee.

SAMFORD, J. The cause was tried by the court sitting without a jury. The complaint contained the common counts and a special count, A, alleging that defendant was a bank, a deposit by plaintiff, and a refusal by defendant to pay plaintiff the sum deposited, and that the amount was due and unpaid. The complaint was demurred to, the demurrer overruled, and the cause proceeded to trial on pleas denying indebtedness, payment, and the statute of limitations. Upon the examination of the entire record it appears that the cause was tried and determined upon issues entirely outside the common counts, and therefore any rulings on these pleadings could not affect the rights of the parties one way or the other. If, therefore, the trial court was in error, such error would not work a reversal. Sup. Ct. Rule 45 (61 South. ix).

den of proof, the fault is with the system and not with the law. In this case it is admitted that the plaintiff made the deposit of $300, that a demand was made for its return, and the plaintiff testified that she had never drawn any of the money out, nor authorized any one to draw it out, and had never given any checks against it. The testimony of Mr. Fisk, her employer, Mr. Walker, and her bank book and check book given her by the bank at the time the deposit was made, all tended to corroborate her statement; while, all the bank has been able to show is that according to its books the money had been paid out, but as to whom or how the evidence is silent, except as to the custom of the bank in handling accounts of this kind. There is no direct and positive evidence that the money was ever paid to plaintiff, or paid out on checks drawn by her. The bank had no vouchers, nor did its books or other evidence show it had ever returned any to plaintiff. If the books of the bank had shown "Vouchers returned $300.00," or other entry indicating a closed account, a different question might be presented, but no such evidence is in this record.

Count A should have alleged a demand, as well as a refusal to pay, but the defendant was not injured by this ruling, in view of the fact that a demand was proven, without conflict. In fact, the defense was based upon the theory that the amount claimed had been paid, and not upon the fact that it had not There is no evidence tending to show that been demanded. If defendant, after admit- the plaintiff constituted Henry and Sig Loeb ting the deposit, had claimed that its failure as her agents other than for the purpose of to pay had been on account of a lack of de-identification, and yet, according to the testimand, there would have been some merit in mony of defendant's witnesses as to the custhe contention here made, but its refusal to tom of the bank in handling such accounts,

PER CURIAM. Reversed and remanded in accordance with mandate of Supreme Court in Ex parte First National Bank of Montgomery, 90 South. 340.

every dollar of this money might have been drawn out on checks acceptable to the bank, without the knowledge or consent of plaintiff, or, being an inactive account, to the credit of an ignorant person, there are other ways the money might have been taken from the bank, not necessary here to suggest. At any rate, the evidence of the custom of the bank in dealing with accounts of this char Ex parte FIRST NAT. BANK OF MONTacter may all be, and doubtless is, true, and yet be reconciled with the testimony of the plaintiff that the money was not paid to her FIRST NAT. BANK OF MONTGOMERY v. WILLIAMS. (3 Div. 493.) or on her order.

It is true defendant introduced some evidence tending to show that plaintiff had used several hundred dollars in rebuilding a house that was burned and the building of another. small house, but she, on her part, offered testimony to show where she got that money, other than from the bank, which must have satisfied the mind of the trial court.

Under the authorities, this court would not be justified in disturbing the decision of the trial judge on the facts. City of Mobile v. Rush, 202 Ala. 628, 81 South. 570.

GOMERY.

(Supreme Court of Alabama. June 21, 1921. Rehearing Denied Oct. 6, 1921.)

Banks and banking 154 (3)-No cause of action for nonpayment of deposit until demand.

Though a general deposit with a bank creates the relation of debtor and creditor, no cause of action for nonpayment thereof exists, until demand is made at the banking house and within banking hours.

2. Banks and banking 154(5)-Demand for payment of deposit must be alleged.

The judgment of the court was for the amount of the deposit, plus 8 per cent. in-demand for payment thereof must be averred, In an action to recover a bank deposit, a terest from the date of the proven demand. or there must be some allegation to dispense This was, of course, correct. with it.

We find no reversible error in the record, 3. Banks and banking 154(5)-Averment of and the judgment is affirmed.

Affirmed.

On Rehearing.

It is urgently insisted that the error of the trial court in overruling demurrer to count A should work a reversal of this case. In Birmingham So. Ry. Co. v. Goodwyn, 202 Ala. 599, 81 South, 339, 340, in an opinion in which the writer then concurred, this court

held to the same view as now contended for by appellant, but on certiorari to the Supreme Court the writ was granted on the ground that the ruling on the demurrer was error without injury, and governed by rule 45. Birmingham So. Ry. v. Goodwyn, 202 Ala. 599, 81 South. 341. Since that time many decisions both of the Supreme Court and of this court have been to the same effect, notably Sov. Camp W. O. W. v. Ward, 201 Ala. 446, 78 South. 824; Clinton M. Co. v. Bradford, 200 Ala. 308, 76 South. 74; Vance v. Morgan, 198 Ala. 149, 73 South. 406; Lehman v. Austin, 195 Ala. 244, 70 South, 653; Dunning v. Town of Thomasville, 16 Ala. App. 70, 75 South. 276; Jackson v. Vaughn, pro ami, 204 Ala. 543, 86 South, 469. In the instant case, which was tried before the court, and therefore no charge to the jury defining the issues, the record so conclusively shows a consideration of the whole question, including proof of demand and refusal to pay, we are forced to the conclusion that the overruling of demurrer to count A comes within the influence of the authorities above cited.

refusal to pay deposit held insufficient averment of demand for payment.

In complaint in action to recover a bank fused to pay was an insufficient averment of deposit, an averment that defendant had rea demand for payment, since such refusal might have been of a demand for payment elsewhere than at the bank or in banking hours, or by a method not recognized in the banking business. 4. Appeal and error 1082(1) Supreme Court will review Court of Appeals' applica. tion of doctrine of error without injury.

(90 So.)

by Amanda Williams against said bank (90 insufficient (126 Ala. 548, 28 South. 520, 521) South. 339). Writ granted, and judgment for its failure appropriately to aver a dereversed and remanded. mand, notwithstanding the count did aver that the bank had "failed and refused upon demand to pay," etc., positive allegations broader as well as stronger than the averment of the present count A.

1

It is of course universally recognized that a demand by the depositor is a condition precedent to the maintenance of a suit of this character. Tobias v. Josiah Morris & Co., 126 Ala. 535, 28 South. 517:

"The reason for the rule is that, when banks are ready and willing to pay on demand, they shall not be annoyed by suit. The implied contract is that the bank shall keep a deposit until called for, and until the bank refuses to pay on demand they are not in default." Hold93 Atl. 1040, L. R. A. 1915E, 309, Ann. Cas. en v. Farmers' & T. Nat. Bk., 77 N. H. 535. 1917E, 23.

to pay in count A is not the equivalent of an [ ure to aver a demand by the plaintiff. I am averment of the demand necessary to be unable to agree. averred. Non constat, the refusal alleged may have been of a request or demand for payment elsewhere than at the bank or otherwise than in banking hours, or by a method or means not recognized in the banking bustness. Now, as to the application of the doctrine of error without injury: This court will review the action of the Court of Appeals in applying or denying that doctrine. Birmingham Sou. Ry. v. Goodwyn, 202 Ala. 601, 81 South. 339. In none of the decisions of this court considering the application of the doctrine of error without injury to erroneous rulings on demurrer to pleading has it been held that either through instruction of the jury or through the effect of undisputed proof of the erroneously omitted allegation from the pleading effectively assailed by the demurrer was the error cured or rendered harmless when, as here, the omitted averment was of a matter that went to afford the condition precedent to the creation of a cause of action in the plaintiff. The obviously correct statement was made in Jackson v. Vaughn, 204 Ala. 543, 86 South. 471, that in administering rule 45 (61 South. ix) each case must be determined upon its own record. The doctrine will not be extended to such cases as this where the very existence of a right or cause of action depends upon the omitted allegation of a demand. To do so would involve too serious a qualification or denial, in effect, of fundamental principles of pleading, and a very doubtful departure from the safer course in the adjudication of the rights of parties. To permit so essential a condition precedent to the existence of an action to be afforded alone by evidence might involve constitutional inquiries of a grave character. Neither in phrase nor design does rule 45 apply to such circumstances.

While the language of count A does not include the word "demand," yet we are persuaded it is embraced within, and clearly and necessarily implied by, the language used. "The ordinary signification of the word 'refused' is to deny a request or demand." Burns v. Fox, 113 Ind. 205, 14 N. E. 541. "Refusal is a failure to pay money when demanded." Kimball v. Rowland, Gray (Mass.) 224; 34 Cyc. 1013; 7 Words and Phrases, p. 6031. "The averment 'that payment was refused' presupposes a previous demand of payment. The word 'refused' signifies to deny a request, demand, invitation, or command,' and the proof of the refusal to pay necessarily involves the proof of a previous demand." Shaler v. Van Wormer, 33 Mo. 386. "Refusal' presupposes a 'demand." Williams v. Bagnelle, 138 Cal. 699, 72 Pac. 408. The count here in question alleges that the money was due and unpaid, and that defendant had refused to pay her the sum so deposited.

I recognize the rule that pleading is to be construed most strongly against the pleader, but this court has several times declared that in construing the language used in the pleading it must at the same time be given a meaning consistent with sound reason and common sense. The very language of the complaint, when so construed, presupposes a deWrit granted, and reversed and remanded. mand or request for the funds, and while it

For the error indicated the writ will be granted and the cause remanded to the Court of Appeals for further consideration in accordance with this opinion.

does omit the precise word "demand," yet

ANDERSON, C. J., and SAYRE, THOM- this is necessarily implied in the meaning of AS, and MILLER, JJ., concur. GARDNER, J., dissents. SOMERVILLE, J., not sitting.

GARDNER, J. (dissenting). Count A alleged "that the defendant has refused to pay her the sum so deposited, and that the same is due and unpaid." This count is considered by the majority as fatally defective for fail

the language used, and its omission does not render the count bad. So construing the count, therefore, I am of the opinion that it was not subject to demurrer, and that the trial court cannot be put in error for so ruling. This conclusion renders it unnecessary to consider the question of error without injury.

I respectfully dissent.

(90 So.)

Appeal from Circuit Court, Montgomery LEVERETT v. GARLAND CO. (3 Div. 529.) | County; W. L. Martin, Judge.

(Supreme Court of Alabama. Oct. 27, 1921.) 1. Appeal and error 917(2)—Presumed that demurrer pointed out defect in plea.

It will be presumed on appeal that demurrers to pleas not found in the record, which were sustained by the court, pointed out any defect appearing therein by assigning a tenable ground of objection to it.

2. Principal and agent 103(14)-No presumption that selling agent has authority to accept return of goods.

There is no presumption from an agent's authority to sell goods that he has authority, after the goods are shipped and delivered to the purchaser by the seller, to receive them back and rescind the sale. 3. Corporations

672(6)-Plea as to unlawful doing of business in state insufficient in that it fails to show where cause of action

arose.

In action by a corporation for goods sold, a plea averring that plaintiff at time of making the contract was organized under the laws of another state, and doing business in this state in violation of Const. 1901, § 232, and Code 1907, § 3642, as to designation of agent and place of business, was insufficient where it failed to allege the demand sued on arose in the state, or that the contract of sale was made in this state, since the debt may have been contracted outside or may have been the result of an interstate transaction. 4. Commerce 8(1)—Provision as to foreign corporation's doing business in state inapplicable to interstate transaction.

The provisions of Const. 1901, § 232, and Code 1907, § 3642, relating to foreign corporations doing business in the state, have no application to interstate transactions.

5. Corporations 661 (4)-Violation of requirement as to agent and place of business by doing business with others immaterial as to corporation's right to sue buyer from it.

Violation by a foreign corporation of Const. 1901, § 232, and Code 1907, § 3642, as to designation of agent and place of business, by doing business in the state with persons other than a buyer of goods from it, has no bearing on its right to sue him for the price, since such goods may have been shipped to him in inter

state commerce.

6. Corporations 661 (4)-Buyer from corporation not complying with requirement as to agent and place of business not entitled to complain that it sued only for goods legally sold.

If part of goods sold by a foreign corporation were sold, illegally by reason of its failure to comply with Const. 1901, § 232, and Code 1907, § 3642, as to designation of agent and place of business, and the remainder were not being shipped in from outside, the buyer cannot complain of its separating the legal from the illegal, and suing only for the price of goods legally sold and delivered.

Assumpsit by the Garland Company against G. D. Leverett. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

The following are the pleas referred to in the opinion:

(2) Comes the defendant and for answer to the complaint says that each count of the complaint is based upon a contract between plaintiff and defendant whereby plaintiff agreed to sell to defendant certain items of paint products. And defendant avers that said contract is null and void and should not be enforced, for that plaintiff at the time of entering into such contract was a corporation organized under the laws of the state of Ohio, and was at such time doing, or attempting to do, business within the state of Alabama, in violation of the provision of the Constitution and of section 3642 et seq. of the Code of Alabama of 1907, in that said corporation carried a stock of goods at Birmingham, Ala., from which shipments were made to purchasers in the state of Alabama and other states; that said corporation had failed or refused to designate an agent and a known place of business as required by said Code, and had failed or refused to file with the Secretary of State of Alabama the information required of foreign corporations doing business within the state, according to law.

(3) For answer to the complaint and each count thereof says that each count of the complaint is based upon a transaction wherein and whereby plaintiff, through its agent, one Emmet A. Jones, sold to defendant certain paint products described in the complaint; that said goods were received by defendant, and were by him returned in like good order and condition as when received to the said Emmet A. Jones, as agent of the plaintiff.

(4) Comes the defendant and for answer to the complaint says that each count of the complaint is based upon a contract between the plaintiff and defendant, whereby plaintiff agrees to sell to defendant certain items of paint or And defendant avers that at paint products. the time of ordering the items sued for he ordered other items of paint products; that all of the other items, to wit, 15 barrels of paint, were shipped from Birmingham, Ala., according to the agreement between defendant and plaintiff's agent; that for its own convenience, and without the knowledge or consent of defendant, plaintiff made shipment of the particular item sued upon from Cleveland, Ohio, instead of Birmingham, Ala., although same was purchased at the same time and under the same terms and conditions as the items shipped from Birmingham, Ala., referred to above. And defendant avers that said contract is null and void and should not be enforced for that the plaintiff at the time of entering into such contract was a corporation organized under the laws of the state of Ohio, and was at such time doing business within the state of Alabama, in violation of the provision of the Constitution and of section 3642 of the Code of Alabama of 1907, in

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