The opinion of the court was delivered by: BYERS
This action at law was tried to the court, a jury having been waived. The plaintiffs, residents of Florida, were the payees named in a check for $3,750.00 dated June 3, 1930, drawn upon the Bank of Manhattan Trust Co., by F.G.H. Realty Co., Inc., which was deposited by the payees in their banking account in the Bank of Bay Biscayne, Miami, Florida, on June 6, 1930. The check was endorsed "For deposit of Florence Leonardi & John Leonardi" and "Pay to the order of any bank or trust company. Previous endorsement guaranteed. June 6, 1930. Bank of Biscayne, Miami, Florida, J. E. Lind, Cashier."
When the deposit was made, the plaintiffs requested that the check be immediately credited, but two officers of the bank refused the request. The plaintiffs were informed that it would be accepted for collection, but could not be drawn against for eight days, or until June 14, 1930.
Also the plaintiffs were informed that, because of their past record, the bank would permit them to draw $750.00 to meet pressing bills "but not to draw against the check."
That evidence was not contradicted, and must be deemed to establish that the bank was willing to permit a temporary over-draft in the plaintiffs' bank account, during the said period of eight days.
The evidence, also uncontradicted, is that the bank did not pay the $750.00 "on account of this check." Whether it did so otherwise does not appear.
The contract between the bank and the plaintiffs, in respect of this item so taken for collection, is evidenced by the deposit slip reading as follows:
"John and Florence Leonardi
"Miami, Fla., June 6, 1930.
"Please List Each Check Separately
"In receiving items for deposit or collection, this Bank acts only as depositor's collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment in cash or solvent credits. This Bank will not be liable for default or negligence of its duly selected correspondents nor for losses in transit, and each correspondent so selected shall not be liable except for its own negligence. This Bank or its correspondents may send items, directly or indirectly, to any bank including the payor, and accept its draft or credit as conditional payment in lieu of cash; it may charge back any item at any time before final payment, whether returned or not, also any item drawn on this Bank not good at close of business on day deposited.
"Checks as follows
"1 -- 2 3750.00
O K/R V B
and by the following notice printed in the pass book:
"Items not payable in this city are taken at your risk until we have reduced to our possession the funds received by us in settlement thereof, and credits, or remittances, made by us, therefore are subject to revocation until we have received final actual payment. The mediums which we employ are your agents, and we assume no responsibility for their neglect, default, or failure. Bank of Bay Biscayne."
On June 6, 1930, the said bank sent by air mail to the defendant, its New York correspondent, this check, with others, listed in an advice reading:
"We enclose cash items for collection and credit. All items listed in this letter to be handled as Cash unless otherwise instructed.
"Items $10.00 and under No Protest. Do not protest items bearing this stamp or similar authority of proceding endorser. Telegraph ...