(122 A.)

of "Adjustment of Accounts and Return of [128, 34 Am. Rep. 300, the Second National Repudiated Items." The annotator says held, by the indorsement of the payees, a note there is a conflict as to the right of a bank of the makers, payable at the Western Bank, to which a check has been charged in the at which the makers kept a deposit account. clearing house, and which has not repudiat- On the day of its maturity, about half past ed it within the time prescribed by the rules, 11 o'clock, it was certified by the teller of to recover the sum paid thereon as money the Western as "good." The runner of the paid under mistake on discovering that the Second proceeded on his rounds, and returncheck was forged, or that the drawer's funds ed with the note to the Second about 1 were insufficient, and a number of author-o'clock, when he told the president that the ities are referred to. There is some differ- note had been paid, "meaning thereby, that ence in the wording of the rules and regula- it had been certified." About the same time tions adopted by clearing houses in the differ- the teller of the Western noticed an order of ent cities, but for the most part they are the the makers received that day directing him same in effect in regard to fixing a time not to certify the note. He immediately sent within which the paying bank shall give the order to the Second, with a note calling notice that a check is not good. The object the attention of the bank to it, and requesting in naming a time cannot be, certainly ought that his name might be erased. The messennot to be, in doubt. It could not have been ger reported on his return that the president intended to make one bank pay for the loss of the Second said "All right." About the of money by another which loss the former same time a message was sent from the Secwas in no way responsible for. As was said ond to the indorsers requesting them to call in Merchants' Nat. Bank v. Nat. Eagle Bank, at that bank, and one of the firm did so. The 101 Mass. 281, 100 Am. Dec. 120: president of the Second stated to him the "The manifest purpose of the provision is to facts of the certification and the demand for fix a time at which the creditor bank may be its erasure, and the member of the firm who authorized to treat the check as paid, and be was there consented to waive protest, and able to regulate with safety its relations to wrote "Protest waived" on it. That was not other parties. We cannot adopt the theory later than 2 o'clock, and at about 3 o'clock that a failure to present a bad check, before it became known that the makers had failed.

the time named, to the bank sending it through

the clearing house, works an absolute forfei- The next day, the Second, without erasing ture, and is in itself a perfect bar to any action to recover the amount of such check."

What we have quoted above from 30 Md., where it speaks of a check not being heard from before the hour named, and says, "The bank sending it has the right to assume it was good or had been paid, and to act accordingly," undoubtedly meant that it had the right "to act accordingly" in its dealings with third parties. In that case the paying bank did not notify the presenting bank that the check was a forgery until eight days after the presenting bank had sent it to the clearing house, and the day after that the forger drew out the money, but Judge Miller did not, even in a case of that kind, where there was loss to the presenting bank, his opinion on the mere fact of the notice not being given, as required by the rules. Although the defendant in that case entered the check as cash when it was left with it, the cashier instructed its officers not to allow the amount to be drawn on until it was first ascertained that the check was good or had been paid, and Judge Miller said:

the certification, sent the note to the clearing house, debited to the Western Bank, and received the money for it. The teller of the Western, upon receiving his clearing house list of that day, found the note entered, and debited to that bank. He at once erased the certification, and went with the note to the Second, where he demanded and received the money for it, and left the note there. The Second sued the Western to recover the amount of the note. It was said in that case

that

If "The Second National Bank had been misled by the certificate, and relying upon its accuracy had omitted to take steps to charge the indorsers, there can be no doubt the Westrestern Bank would be bound to make good the amount of the note. But the facts are, that the Second National Bank was informed of the error so soon as it was discovered, and in time to fix the responsibility of the indorsers, either by protest, or by getting from them, as it did, a waiver of protest. There is no principle of law better established than that an error of fact may be corrected in any reasonable time before it is acted upon by the other party relying on its truth and accuracy. There can be no such stringent rule of law as would make a memorandum of this description irrevocable the moment it is placed upon the note. If put there in error, like any other error or mistake, it may be corrected before rights and liabilities have been incurred or losses sustained in consequence of it. * * But even if steps had not been taken to fix the liability of the indorsers, the Western Bank could not have been held liable, as the corrected information was given in time to do so, and the

"Having done so and having in fact paid to such party, after the check had been paid by the plaintiff, it is impossible to say the defendant has not been placed in a worse position in consequence of such payment by the plaintiff,"

the inference being that if it had not been so placed the court might have reached a different conclusion.

In Sec. Nat. v. Western Nat. Bank, 51 Md.

presenting bank was bound to accept and to question was whether, because of its ignoact upon it. 36 N. Y. 337." rance of the drawer's insolvency at the time of the payment of the check, the Exchange Bank was entitled to recover the amount

There was an attempt in that case to prove a usage that a certification could not be re

voked before new rights had been acquired on the faith of said certification, but the court said it was not proven, and, if such a usage existed, it was unreasonable and repugnant to the well-settled rule of law, and

added:

paid to the holder, in order that its right of set-off against the drawer could be utilized. Judge Urner, in the opinion filed, cited many cases, including Manfrs. Nat. Bank v. Swift, 70 Md. 515, 17 Atl. 336, 14 Am. St. Rep. 381; Oddie v. Nat. City Bank, 45 N. Y. 735, 6 Am. Rep. 160; First Nat. Bank v. Burkham, 32 Mich. 328; Nat. Bank v. Berrall, 70 N. J. Law, ing upon them as true, has incurred any loss 757, 58 Atl. 189, 66 L. R. A. 599, 103 Am. St. or damage, or assumed any new rights or lia-Rep. 821, 1 Ann. Cas. 630; Cit. Bank of Norbilities. The rule rests upon the soundest principles of reason and justice, and any usage in conflict with it would be so unreasonable and unjust that it cannot be maintained."

"Errors, as we have already said, may always be corrected before the other party, act

folk v. Schwarzschild, 109 Va. 539, 64 S. E. 954, 23 L. R. A (N. S.) 1092; C. & F. Bank v. First Nat., 30 Md. 11, 96 Am. Dec. 554; Hardy v. Chesapeake Bank, 51 Md. 562, 34 Am. Rep. 325-all of which, together with and urged upon us, especially the Maryland others, are cited by the appellant in this case

In Nat. Bank of Commerce v. Baltimore Comm. Bank, decided in June, 1922, and reported in 141 Md. 554, 118 Atl. 855, we expressly affirmed that decision, notwithstand-cases; but it seems clear to us that none of ing the Negotiable Instruments Act, now in article 13 of our Code. We said:

"The general rule is conceded by the appellant to be that by certification a bank enters into an absolute undertaking to pay the check or draft when presented (7 C. J. 707), but attention is called to the well-established exception that, where such certification is made by mistake, such mistake may be corrected so long as the rights of the third persons have not intervened (7 C. J. 709; Second Nat. Bk. v. Western Nat. Bank, 51 Md. 128).”

Again it was said:

them are applicable to the real questions in this case. Before leaving the Ginn Case, we must call attention to the fact that Judge Urner distinguished the case of Second Nat. Bank v. Western Bank, 51 Md.. 128, 34 Am. Rep. 300, by saying:

"In that case the bank was permitted to cancel its certification of a note for payment where it had been so marked contrary to a written order of the maker which had been overlooked, and where no rights or liabilities had been incurred or losses sustained in consequence of the error." (Italics ours.)

No one can have any doubt at this date about the law when a bank pays genuine checks of its depositors. As this court, as well as others, has often said, it is the busi

"While in a proper case we regard the exception to the general rule before referred to as fully established (Sec. Nat. Bank Case, supra), yet to entitle the bank to free itself from the obligations imposed by its own voluntary act of certification, there must be a clearness of a bank to know the state of its deshowing that such act was done in error."

* *

positors' accounts, and, if it makes a mistake in this respect, it must abide the conThe case of Nat. Ex. Bank v. Ginn & Co., sequences. As was said in Oddie v. Nat. C. } 114 Md. 181, 78 Atl. 1026, 33 L. R. A. (N. S.) Bank, supra, cited by Judge Urner in the 963, Ann. Cas. 1914C, 508, referred to above, above-mentioned case, where a check is predid not involve the clearing house rules, as sented to a bank, it has the right "to reject Ginn & Co. were not members, and of course it, or to refuse to pay it, or to receive it were not bound by them. The National Ex- conditionally, but if it accepts change Bank paid a check dated October 19, such a check and pays it, either by delivering 1909, which the William J. C. Dulaney Com- the currency or giving the party credit for it, pany drew on it to the order of Ginn & Co. the transaction is closed between the bank It was on October 20 sent to Baltimore by and such party, provided the paper is genuthe payee's bank to the Farmers' & Mer-ine." It may be well to say in passing, the chants' Bank of Baltimore, and on the 21st law in Massachusetts and New York, relied was paid through the clearing house, being on by the appellee in this case on the main paid about 11 o'clock. Within an hour after question, is not unlike that in practically all the National Exchange Bank paid the check of the states in this country, unless controlled it was learned that receivers had been ap-by statutes in reference to the duty of banks pointed for the Dulaney Company, and of its insolvency. One of the officers of the bank immediately offered to return the check to the Farmers' & Merchants', and requested repayment. That was refused, and an attachment was issued against Ginn & Co., being There are several marked and clear disnonresidents, and laid in the hands of the tinctions between most of the cases relied on

in paying checks of their depositors, and we confess we are at a loss to know upon what theory the appellant relies so much upon that class of cases when the facts of this case are remembered.

(122 A.)

must be construed in a rule of that kind just as in any other rule, or in a statute. We must not construe that word or that rule independent of all others in the constitution adopted by the clearing house, and, when the object of the rule is considered, it is clear that it means that the notice must be given in order to enable the presenting bank to protect itself and its clients against loss. In order to protect itself from damages for such loss, the receiving bank must, under the rule, give the notice by 12 o'clock noon, although it would be impossible to give it if it did not itself know that there was such a check in existence; but we are not now concerned about a case of that kind, and do not mean by what we say to decide what, if anything, will excuse a failure to give the notice, if

place, in most of them what is spoken of as word "must" at the argument; but words "payment" was not such a payment as that in this case. As we have seen, the officers of the bank did not in fact know of the existence of such a check as this, and of course did not know of the forged certification on it, until after 2 o'clock, and it is useless, therefore, to undertake to hold it responsible on the theory that a bank has the right to reject or accept a check of its depositors; and, as the plaintiff did not reject this one, but accepted it with the knowledge it had, or ought to have had, it is liable. It cannot be contended that it did have actual knowledge, and the only possible ground upon which it can be claimed that it was its duty to know before 12 o'clock that such a check was in existence, and to notify the appellant by that time that the certificate was a forgery, and the check invalid, is the rule of the clearing that failure causes loss to the presenting house, which the appellant seems to contend bank. We realize fully the importance of can have no exceptions read into it such as having a fixed time in such matters, and that ther may be in a statute of this and other members of the clearing house must live up states on commercial law, as shown by some to the rules or take the consequences, if the of our own decisions referred to above. presenting bank sustains loss by its failure Many reasons suggest themselves for not al- to do so. In this case the currency was paid ways dealing with a rule of this kind "accord-by the appellant to its depositor on Saturday, ing to the laws of the Medes and Persians." without making any inquiry of the appellee A fire might occur which would delay the or waiting until 12 o'clock on Monday, when work in a bank for an hour or two, some- it could have known whether the check was thing might happen to the messenger, an unusual amount of business requiring more than ordinary time, or sickness of some of the bank force during an epidemic such as we have experienced in late years, may delay the work. The latter was given as the cause of the delay in this case. The cashier testi

fied:

"We were short-handed that day. It was during the spell of the grippe, and several of the employees were away."

good, but it chose, rather than to run the risk of offending that customer, to take the chances-opened the cage, and the bird flew. It would be rather difficult to base a defense on the ground that of two innocent parties involved the drawee bank should suffer, although it did not know of the forgery, or even of the check, and the first time it could know of it, unless the appellant notified it, was on Monday, after the money and the forger were gone. But we place our decision on the ground that the defendant did not sustain any loss by reason of the failure of the appellee to give the notice by 12 o'clock, or by reason of any act or failure to act by the appellee.

While we do not deem it necessary to base our conclusions on that alone, it is proper to consider it in connection with the rule, as we cannot believe that those who framed the rule intended to exclude all possible exceptions to its very letter, regardless of every- We are therefore satisfied that, under a thing but the time of day. But it does seem proper reasoning of the questions involved, to us to be perfectly clear that a proper con- the plaintiff is entitled to recover, and we alstruction of the language, "notice must like- so are of the opinion that the weight of wise be given before 12 o'clock noon," cannot authority is with the appellee. We cannot mean, and was not intended to mean, that the adopt the decision of the United States Dispresenting bank can require the receiving trict Court in Preston v. Canadian Bank of bank to pay a check simply because the no-Commerce (D. C.) 23 Fed. 181, so much relied tice that it was not good was not given be-on by the appellant, or the case of Nat. Bank fore 12 o'clock noon, although the presenting of Comm. v. Mechanics' American Nat. Bank, bank did not lose a penny by the failure to 148 Mo. App. 1, 127 S. W. 429. Neither of receive the notice by that time. It may be those cases was decided by a court of last that, under other circumstances, it was re-resort, although by judges whose opinions garded as essential to have a time fixed, and we respect, but cannot concur in. On the that ordinarily there can be no deviation other hand, the cases of Merchants' Nat. from that time, but when it is impossible for Bank v. Nat. Eagle Bank, 101 Mass. 281, 100 the presenting bank to lose anything, and in Am. Dec. 120; Boylston Nat. Bank v. Richfact it lost nothing by the delay, the reason ardson, 101 Mass. 287; National Bank of N. of the rule certainly a valid reason for the A. v. Bangs, 106 Mass. 441, 8 Am. Rep. 349; rule does not exist. Stress was laid on the Nat. Exch. Bank v. Nat. Bank of N. A., 132

122 A.-2

the Eastern Shore Brokerage & Commission Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and OFFUTT, JJ.

Fred R. Owens, of Denton, and Joshua Clayton, of Elkton, for appellant.

Mass. 147; Merchants' National Bank v. Nat. Bank of Comm., 139 Mass. 513, 2 N. E. 89; Cit. Centr. Nat. Bank v. New Amsterdam Nat. Bk., 128 App. Div. 554, 112 N. Y. Supp. 973, afirmed in 198 N. Y. 520, 92 N. E. 1080 -are much more satisfactory to us, although there may be some statements in some of them not necessary to adopt. Watson's Law of Clearing House, 39, 45, also approves of the reasoning we have adopted, Mr. Watson being the author of the article on Clearing Whaley, of Snow Hill, and Omar D. CrothHouse in 6 Am. & Eng. Enc. of Law, 113-ers, of Elkton, on the brief), for appellees. 130. We will not prolong this opinion by discussing those authorities or referring to them more fully than we have already done in this opinion, but they support our view of

the law as stated above.

We do not think the custom undertaken to be shown by the appellee as to the banks waiving the rules of the clearing house was established by the proof, and hence it is not necessary to discuss the other exceptions; but we are of the opinion that the lower court was right in granting the plaintiff's second prayer and in rejecting the defendant's two prayers, and will affirm the judg

ment.

John W. Staton, of Snow Hill (John S.

BRISCOE, J. This is an action instituted

by the appellee against the appellant to recover damages for the alleged breach of a contract whereby the appellee, the plaintiff below, sold to the appellant, the defendant below, and the defendant purchased from the plaintiff 20,000 dozen cans of No. 10 standard apples in water, at $5.621⁄2 per dozen, but the defendant refused to accept a. portion of the goods, pursuant to the contract, and it is alleged the plaintiffs were injured and damaged thereby. The plaintiffs are packers and canners of fruits and vegetables, with factories in Maryland and Virginia, and with headquarters in Federalsburg, Caroline county, Md. The defendant is a corporation engaged in the general canned goods, brokerage, and commission business in this state, with its principal of

EASTERN SHORE BROKERAGE & COM-fice, at Preston, in Caroline county, Md. MISSION CO. v. MESSENGER et al. (No. 28.)

(Court of Appeals of Maryland. April 5, 1923.)

1. Appeal and error 882 (8)-Admission of testimony harmless in view of like testimony for other party.

Admission of testimony for plaintiff is harmless to defendant where the same character of testimony is subsequently introduced by defendant.

2. Appeal and error

1052(5)-Admission of evidence harmless in view of remittitur. Admission of evidence to show plaintiff's lost profits was harmless, plaintiff having accepted a remittitur from the verdict of amount claimed as such profits.

3. Appeal and error 1064(4)-Long prayer divided into paragraphs disapproved, but harmless.

The suit was brought in the circuit court for Caroline county, but was subsequently removed to the circuit court for Queen Anne's county, and thence to the circuit court for Cecil county, where, upon trial, it resulted in a verdict in favor of the plaintiff for $13,572.46. On motion for a new trial a remittitur of $2,018.99 was allowed by the court and accepted by the plaintiffs, and a final judgment was entered in favor of the plaintiffs for $11,553.47. From this judgment the defendant has appealed.

The declaration sets out substantially the contract, and alleges a breach by the defendant in failing and refusing to comply with the terms of the contract. The declaration avers that the plaintiffs at all times, as required thereunder, were ready, willing, and able on their part to fully perform all their obligations under the terms of the contract, and pursuant to the contract the plaintiffs delivered to the defendant and the defendant accepted from the plaintiff between August 16, 1919, and December 23, 1919, inclusive, a part of the goods named in said contract, for which part so delivered and accepted full settlement was made by the defendant, but the defendant thereafter refused to accept the remainder of the goods, and the plaintiffs were inAction by Henry B. Messenger and anoth-jured and wronged, and claim damages, to er, trading as H. B. Messenger & Co., against the amount of $20,000.

The giving of a long prayer divided into separate paragraphs, while disapproved; will not justify reversal, the legal proposition asserted with sufficient clearness being correct.

Appeal from Circuit Court, Cecil County; Wm. H. Adkins and Lewin W. Wickes, Judges.

"To be officially reported."

(122 A.)

The eighteenth, and last, exception embraces the rulings of the court on the prayers. The plaintiff submitted three and the defendant two prayers. The plaintiff's three prayers were granted, and also the defendant's second prayer was granted, but its first was rejected. To the action of the court in granting the plaintiff's prayers and the refusal to grant the defendant's first prayer, the defendant excepted, and this constitutes its eighteenth bill of exception.

The bill of particulars filed by the plain-, there could be no reversal of the judgment tiffs in the case, states that, pursuant to for this error, standing alone. contract sued on, the plaintiffs delivered to the defendant and the defendant accepted from the plaintiffs between August 16, 1919, and December 23, 1919, inclusive, 11,3051⁄2 dozen No. 10 standard apples in water, for which full settlement was made by the defendant at the price named in the contract, but on March 15, 1920, refused to accept any more, and the plaintiff claims damages for the refusal by the defendant to accept the balance of the 20,000 dozen called for in the contract, said balance being 8,6941⁄2 dozen, according to an account set out in the record.

At the trial of the case the defendant reserved 18 exceptions to the rulings of the court. Seventeen of these were to the rulings of the court on evidence, and one to the rulings on prayers. While the appellant relies in its brief upon the various exceptions to testimony set out in the record, there are no reasons assigned or authorities cited showing injurious or reversible error in any of the rulings of the court thereon.

[1] The appellant clearly cannot complain and was not injured by the admission of the testimony of the witness Messenger, set out in the first bill of exception, because the same character of testimony was subsequently introduced by the defendant itself, and admitted, in the examination of the defendant's witness Colbert. The second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and seventeenth bills of exception relate to the rulings of the court in admitting certain testimony as to the breach of the contract, and to the effort on the part of the plaintiff, to lessen the damages. This evidence, we think, was proper, competent, and admissible, and there was no reversible error in any of the rulings set out in these

exceptions.

[3] The principal objection and contention over the prayers relate to the plaintiff's second granted prayer. It is urged that this prayer is defective, first, because it fails to refer to the plaintiff's first prayer, and, second, because the prayer is unnecessarily long, complicated, and involved. While we think the form of the prayer and its extraordinary length is open to criticism, yet we are unable to hold that this defect in the prayer is sufficient to justify a reversal. The prayer, it will be seen, covers about two pages of the record, and is divided into four separate paragraphs, of unusual length.

In Maryland Steel Co. v. Engleman, 101 Md. 680, 61 Atl. 315, it is said:

"This court has always discouraged prayers of extreme length, as not adapted to aid and enlighten the jury, and in Whiteford v. Burckmyer and Adams, 1 Gill, 153, approved in Coal Co. v. Scally, 27 Md. 603, the court said: 'If counsel present to the court a complicated and involved statement which it will be difficult for the jury to understand distinctly, it will be a sufficient ground upon which the court should refuse to give a direction in the terms asked for.'"

In Thomas v. Cortland, 121 Md. 670, 89 Atl. 414, the court said:

"Prayers should be drawn with as much brevity as is consistent with a clear and ac

curate statement of the law applicable to the facts of the case, and undue prolixity or unnecessary repetition tend rather to confuse, than to enlighten the jury."

In Wagner v. Klein, 125 Md. 236, 93 Atl.

449, this court announced its disapproval of drawing and arranging prayers "into separately numbered paragraphs," and said:

"Although we do not deem it of sufficient moment in the present case to justify a reversal, we nevertheless do not want to be understood as in any manner giving it our approval."

[2] The eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth exceptions present the rulings of the court on the admission of certain evidence bearing upon the claim by the plaintiff for loss of profits, by reason of the breach of the contract by the defendant. This evidence was admissible as tending to show the proper measure of damages sustained by the plaintiff by reason of the breach of the contract, and the court's rulings on these exceptions, it will be seen, constitutes no reversible error. The plaintiff, however, accepted the remit- The legal proposition on the measure of titur of $2,018.99 on the amount of the ver- damages asserted by the plaintiff's second dict of the jury, and, as this amount was prayer was correct, and it is free from obthe seller's profits claimed by the plaintiff as jection on that ground. Code P. G. L. art. damages, as stated in the bill of particulars, 83, § 85 (Uniform Sales Act); Dimmick v. these exceptions become immaterial. As- Hendley, 117 Md. 466, 84 Atl. 171. suming there was error in the rulings of the court on these exceptions, there was no resuiting injury to the defendant, and hence

While we do not approve of the form of the plaintiff's second prayer, and must not be understood as giving it our sanction, we