What were the facts in this case? The defendant offered for sale an established business. Complainant's son interviewed Mr. Pancoast and asked him to state "the approximate profits" of the business. Mr. Pancoast did some figuring, "and after thinking he said he thought he was making $150 a month." During a later interview between the McSweens and Pancoast, Pancoast, in response to a request that he bring a record of the business, exhibited a paper showing the average sales for three consecutive days. It is undisputed that these sales averaged about $39. The son testified that upon that occasion Pancoast said that, owing to the condition of the books, "he could not tell what the profits were, that he could only do it by a rough approximation." While the elder McSween testified that Pancoast represented that the business was paying $150 a month, he admitted that Pancoast made simply an approximate estimate of expenses, and that Pancoast stated that it would be impossible "to tell from the books what he was making out of each business."

It thus appears from the evidence upon which complainant relies that Mr. Pancoast distinctly stated that, owing to the fact that but one set of books had been kept for the three businesses, he could not tell what the profits from the café and ice cream business were, and could only make a rough approximation. Of course, if Mr. Pancoast, notwithstanding the condition of his books, knew or had reason to know that the business which he was selling was being run at a loss, and he represented that it was being run at a profit, and the sale was induced by this representation, the complainant is entitled to relief; but the evidence, in our view, does not warrant such a conclusion. Taking the evidence of the complainant in reference to the representations inducing the sale, as a whole, it can form the basis of a finding of nothing more than that Mr. Pancoast gave expression to a mere opinion as to the condition. of the business he was selling.

The allegations of misrepresentation are positively denied by Mr. Pancoast. He says that while the question as to the amount of the expenses incident to the café and ice cream

Opinion of the Court.

[37 App. business was considered in a general way, he made no estimate of the profits he had been making for the reasons stated by the complainant and his son, but did suggest to them how they could run the business with less expense than the corporation. He introduced in evidence, and the record contains, the items of account from which the elder McSween reached the conclusion that the daily average receipts of the defendant during the last three months it ran the business amounted to "between $30 and $35." Defendant's former bookkeeper, from the same items of account, reached the conclusion, and so testified, that the average daily receipts for the same period amounted to something over $40. It is not incumbent upon this court to undertake the work of an expert accountant, for the purpose of determining whether the estimate of complainant or the statement of this bookkeeper is correct. Suffice it to say that upon the evidence before us it does not clearly appear that Mr. Pancoast's statements concerning the receipts of the defendant were not correct, nor does the amount of defendant's expenses appear. Not knowing the amount of defendant's re ceipts and expenses, it is clear that we are unable to determine whether the business was being run at a profit or at a loss when this sale was made. The evidence as to the condition of the business subsequent to the sale is little better. Young McSween testified that the average daily sales for the month of January amounted to $30, and he and his father both testified that the loss during that month was about $150, but no figures whatever were given for the month of February. In-· deed, no balance was struck.

Taking into consideration everything disclosed by the record, we are forced to the conclusion that complainant has not sustained the burden resting upon him. It may be that the purchase of this business was ill-advised, that complainant made a bad bargain; but that alone does not warrant the relief prayed. The question is, Was the transaction the fruit of fraudulent representations? Mere suspicion that it was is not sufficient. The evidence must leave an abiding conviction that bad faith was practised. Such a conviction does not

result in this case. We are not convinced that the representations of Mr. Pancoast were untrue. Upon the whole, we incline to the belief that the very natural ambition of complainant to establish his son in business led to an unprofitable experiment. We cannot overlook the fact that down to the time when smallpox made its appearance in the immediate vicinity, and the closing of the café resulted, the idea that the conduct of Mr. Pancoast was not consistent with good faith had not taken definite form in complainant's mind.

The decree must be reversed, with costs, and the cause remanded with directions to dismiss the bill.

Reversed and remanded.

DIRNFELD v. FOURTEENTH STREET SAVINGS BANK.

BANKS AND BANKING.

In the absence of a contrary understanding, when a bank receives from a depositor a check payable to the depositor and indorsed in blank by him, and places the amount to the depositor's credit, the relation of creditor and debtor between them is created, and not that of principal and agent; and the entry of such deposit in the bank book of the depositor is equivalent in law to a deposit of money.

No. 2164. Submitted November 3, 1910. Decided April 3, 1911.

HEARING on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the Court, in an action for damages against a bank for its failure to pay a note of the plaintiff payable at the bank. Reversed.

The COURT in the opinion stated the facts as follows:

This is an action for damages for refusal to pay a note drawn by the plaintiff, Sigmund Dirnfeld, and made payable at the Fourteenth Street Savings Bank.

Plaintiff was a clerk in the Postoffice Department, and opened an account with defendant on May 19th, 1908, receiving the ordinary bank book of a depositor. The book showed deposits in May and June, and to July 9, when balanced, amounting to $485. The balance July 9th was $26.91. From July 9th to November 16, when again balanced, the total deposits were $259.91; and the books of the bank showed that the account was overdrawn that day by $0.65. October 26th, 1908, Dirnfeld executed a negotiable note for the sum of $52, payable to A. Herstein, or order, at the Fourteenth Street Savings Bank. November 16th, 1908, plaintiff went to the bank between 5 and 6 o'clock P. M., and deposited $43 in money and a check for $10 drawn by N. Stein upon the Columbia National Bank to the order of plaintiff. He made out the usual deposit slip showing the two items, aggregating $53. The money and check indorsed by plaintiff were received by the teller, and a credit was entered in the book for $53. The bank's ledger showed this deposit under date of November 17th, and the true balance of $52.35, after deducting the overdraft of $0.65. The Herstein note was sent by a Philadelphia bank to the Riggs National Bank for collection, with instructions not to protest for nonpayment. The Riggs National Bank presented the note properly indorsed, at defendant's bank about 11 A. M. November 17th. Payment was refused by the bank for want of funds of the drawer, and the note was returned. Plaintiff testified that while his account was running with defendant he had sometimes deposited checks. There was no agreement or understanding concerning his right to draw against checks so deposited, and he had drawn against them at will. Some other testimony relating to damages need not be mentioned.

Defendant's receiving teller testified that when plaintiff

opened his account, he was told that he would not be permitted to check against "uncollected items," which were explained to be checks on other banks than defendant, and that he agreed to the same. The testimony of this witness and the cashier tended to show that the reason that the note was not paid when presented about 11 o'clock A. M. on November 17th was that the Stein check had not then gone through the clearing house. That said check had been deposited at the opening of business on that day with the Commercial National Bank, with which defendant did its "clearing house business," and by that bank had been sent through the clearing house, and that defendant could not possibly hear from it before 2 or 3 P. M. Said check was paid in the usual course of business the same day, and defendant received the money after the note had been refused payment. That deposits received by defendant after 3 P. M. are entered on the ledger the succeeding day in the usual course of business, and this accounted for the slight discrepancy between the bank book and the ledger. That plaintiff did not tell the teller of the note due the next day at the bank, and defendant did not notify plaintiff that payment of the note had been refused.

The duty of the defendant to pay the note on presentation is founded on sec. 1391 of the Code [31 Stat. at L. 1405, chap. 854], which provides that "where the instrument is made payable at a bank, it is equivalent to an order to the bank to pay the same for the account of the principal debtor thereon."

Upon the conclusion of the evidence, the defendant moved the court to direct a verdict in its favor, on the ground that defendant was under no duty, contractual or otherwise, to honor the note of the plaintiff when presented, as the evidence did not show that the plaintiff had sufficient funds on deposit to pay said note, the Stein check not then having been paid.

The motion was granted, and from the judgment on the verdict, so directed, plaintiff has appealed.

Mr. Alexander Wolf and Mr. Levi H. David for the appellant