account was opened he had all the negotiations with plaintiff's husband, and was not aware that plaintiff was present; that plaintiff's husband deposited the draft to plaintiff's credit, and stated that it would be checked out in his wife's name by him; and that the husband wrote in the record of signatures that of his wife; and that all the money then or thereafter deposited was paid out on checks signed "B. T., by M. S. T." Held, that it was error to charge, if the jury believed the evidence, to find for defendants, since the question whether plaintiff was estopped by her conduct from disputing her husband's authority to draw on her account was a question of fact for the jury.

4. Where plaintiff made a deposit of a draft to her credit in a bank under such circumstances that she would be estopped from denying that her husband had authority to sign checks in her name on the fund, she will also be estopped from denying such authority in her husband as to subsequent deposits to her credit, in the absence of any new arrangement with the bank in regard thereto.

Appeal from circuit court, Montgomery county; J. C. Richardson, Judge.

Action by Mrs. Birdy Tobias against Josiah Morris and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

The complaint contained nine counts. The first count sought to recover $800 as money had and received by the defendants on September 16, 1895; the second count was for $300 for money had and received on or about the 8th day of November, 1895; the third count was for $300 for money had and received on December 23, 1895; and the fourth count was for $678.30, as money had and received on December 30, 1895. The fifth, sixth, seventh, and eighth counts sought to recover the said several sums of money, and were the common counts on an account stated and for money loaned. The ninth was a special count, which is copied in the opinion. The defendants filed several special pleas, numbered 7, 8, 9, and 10, in which they set up as a defense that on September 16, 1895, an account was opened with them by B. Tobias; that on that date a bill of exchange on New York was presented to them by B. Tobias and her husband, M. S. Tobias; that the said draft was cashed and deposited with them in the name of M. S. Tobias; that at such time M. S. Tobias, with whom the transaction was had, notified the defendants that the money deposited at that time and to be subsequently deposited by them would be drawn out by checks in the name of B. Tobias, in the name of M. S. Tobias, and that accordingly all of the money had been drawn out by checks so drawn. These several pleas set out in detail the facts incident to the defense interposed, which their evidence tended to sustain. To each of these pleas the plaintiff filed several separate demurrers. After the overruling of these demurrers to all of the pleas except plea No. 7, the plaintiff filed several replications to pleas Nos. 8, 9, and 10. The defense demurred to these replications, which demurrers, it is recited, were sustained. It is unnecessary to set out the grounds of the demurrers to the

pleas or the replications, inasmuch as the judgment entry does not present such a ruling thereon as will be reviewed by this court. The cause was tried upon issue joined upon plea of the general issue and payment respectively. The ruling of the court apon the pleadings as contained in the judgment entry is as follows: "Plaintiff thereupon interposed her demurrers to said pleas 7, 8, and 9, which demurrers, being argued by counsel and understood by the court, were sustained as to plea numbered 7 and overruled as to pleas numbered 8 and 9. Thereupon plaintiff filed her replications numbered 1, 2, 3, 4, and 5 to the said pleas numbered 8 and 9, to which replications defendants interposed their demurrers, which said demurrers the court, upon consideration, sustained. Leave of the court having been first obtained, defendants filed plea numbered 10, to which plaintiff interposed her demurrer, which was filed on the 10th day of June, 1899, which demurrer, upon consideration of the court, was overruled. Thereupon plaintiff filed replications numbered 52, 6, and 7 to plea numbered 10, to which said replications defendants demurred, which said demurrer, upon consideration by the court, was sustained." The evidence on the part of the plaintiff tended to establish the following facts: About the 16th of September, 1895, the plaintiff received a certain bill of exchange for $800, payable to her, drawn by the cashier of the First National Bank at Rockdale, Tex., on the Chase National Bank of New York City. Being desirous of depositing the same in some bank, plaintiff went, in company with her husband, carrying with her said exchange, to one Capt. W. B. Jones, for the purpose of conferring with him in reference to placing the same in some bank for collection and deposit. At the suggestion of Capt. Jones that she go to the defendants' bank, she thereupon handed said exchange to Capt. Jones, with the request that he deposit it for her to her credit in said bank, to which Capt. Jones replied he would do so. Thereupon she, in company with Capt. Jones and her husband, proceeded across the street to the banking house of Josiah Morris & Co., Capt. Jones taking the exchange with him. When they reached the bank, Capt. Jones presented it to the receiving teller, and asked him to place it to the credit of Mrs. B. Tobias. The receiving teller, after looking at the check, said that he would do so, but that she would have to indorse it. Thereupon Capt. Jones handed her the exchange, and she took it, and indorsed it there in the bank, and handed it back to Capt. Jones, who then handed it to the receiving teller. The husband of the plaintiff never had said exchange in his possession at all. The plaintiff heard nothing said there in the bank except what has been stated; nor did she see her husband sign a book of any sort while she was in the bank, nor was anything said in said bank, in her presence, by any one, to the effect that her

husband, Marion Tobias, would draw out this money by checks signed in her name. The check or draft belonged to her, and was in part payment for some land which she got from her father's estate. Plaintiff did not know anything, of her own personal knowledge, with reference to the deposits of $300 on the 8th of November, 1895, nor the $200 on the 23d of December, 1895, but she said that her husband, Marion Tobias, had no money of his own, was engaged in no business, but that he had had money of hers in his possession, the proceeds of land belonging to her, over and above the amount of said exchange. About the middle of December, 1895, plaintiff received a check dated December 11, 1895, drawn by I. A. Worley, and payable to her, on the First National Bank of Rockdale, Tex., for $680. The check did not come direct to her, but was sent by Mr. Worley to the defendants' bank with a paper to be signed by her, releasing a vendor's lien, and upon the signature of which the check was to be delivered to her. The release was signed by her, and the check delivered to her by the defendants' bank, and she thereupon indorsed it there, and handed it to one of the representatives of the defendants' bank, who said that the bank was not willing to pay the check right then, as they knew nothing of the Texas bank, and would have to make inquiry before paying the money; that they would send the check for collection, and when they heard from it they would place the proceeds to the credit of her account. She assented to this, and the check was forwarded by the defendants' bank for collection. Both this exchange and the check were collected by the defendants' bank, and all of said deposits were made to the plaintiff's credit with said bank. She had demanded the money of the bank, but payment was refused. She did not know that the money had been paid out by the bank until the 7th of January, 1896; had never authorized any one to sign her name to checks, nor to in any manner receive said money. When she heard the money was gone, she immediately took steps looking to its recovery. She and her husband were not living together at the time, and had not lived together since January 2, 1896, and she knew nothing of the money having been drawn out until after he had left her. The testimony on the part of the defendants tended to show that, at the time of the delivery to the defendants' bank of the exchange for $800, M. S. Tobias, the husband of the plaintiff, said that he wanted to open an account in the name of B. Tobias; that B. Tobias was his wife; that either M. S. Tobias or Capt. Jones handed to its receiving teller a check payable to the order of B. Tobias, and that thereupon the receiving teller took a record of the signature "B. Tobias," signed by M. S. Tobias; that the money was placed to the credit of Mrs. B. Tobias; that M. S. Tobias stated that he would check out the money in the name of B. To

bias. J. R. Sayre, a witness for the defense, testified that on September 16, 1895, he was employed by the banking house of Josiah Morris & Co., occupying the position of receiving teller, and that the account of said Josiah Morris & Co. with B. Tobias was opened on that date; the negotiations incident to the opening of such account being had with him as the representative of the defendants. He testified that, at the time the deposit was made and the account was opened, Capt. W. B. Jones and M. S. Tobias were present, and that M. S. Tobias stated to him that he wanted to open an account in the name of B. Tobias, who was his wife, and that thereupon said M. S. Tobias handed witness a check payable to the order of B. Tobias; that thereupon the witness took a record of signatures, and requested M. S. Tobias to write therein the signature by which the money was to be drawn out; that thereupon he wrote "B. Tobias," stating that the money was to be checked out by him, M. S. Tobias, in the name of B. Tobias. This witness further testified that he did not see the plaintiff at the time of this transaction, and he did not know that the plaintiff was present, or whether she heard any part of the conversation or not. He further testified that all of the money which was deposited was credited to the account of B. Tobias, and was paid out on checks signed "B. Tobias, by M. S. Tobias." The other facts of the case necessary to an understanding of the case on the present appeal are sufficiently stated in the opinion. There were 23 charges requested by the plaintiff and refused by the court, to the refusal to give each of which the plaintiff separately excepted. It is, however, unnecessary to set out these charges in detail. At the request of the defendants, the court gave to the jury the following written charge: "If the jury believe all the evidence, they must find a verdict for the defendants." To the giving of this charge the plaintiff duly excepted. There were verdict and judgment in favor of the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were re served.

Lomax, Crum & Weil and Gordon Macdonald, for appellant. J. M. Chilton and Graham & Steiner, for appellee.

TYSON, J. Quite a number of assignments of error are predicated upon the rulings of the court upon demurrers to pleas and replications. These assignments cannot be considered, for the reason there is no judgment to support them. Cartlidge v. Slone (Ala.) 26 South. 918. The complaint contains a number of counts. All of them, except the last, are the common money counts. The last count claims "the sum of nineteen hundred and fifty-three and thirty one-hundredths [dollars] for money and certain checks or bank drafts, which were collected by defendants, deposited with Josiah

Morris & Co., defendants' bank, to be credited to the account of plaintiff with defendants' bank, to wit, during the months of September, November, and December, 1895, which said money was subject to the check or demand of plaintiff. And plaintiff avers that the said defendants have failed and refused upon demand to pay the same, which, with interest thereon, is still due and unpaid." The sufficiency of the averments of this count was not tested by demurrer. Construing it in connection with the evidence introduced upon the trial of the cause, it was obviously the intention of the pleader to frame it so as to recover a general deposit claimed to have been made by the plaintiff with the defendants as bankers. Indeed, this was the purpose of the suit. The common money counts do not disclose this purpose. It nowhere appears in them that such was the object sought to be accomplished by them. For aught that appears, the relation of ordinary creditor and debtor, only, existed between the parties. While it is true the relation of creditor and debtor does exist between the depositor and the banker, yet the usages of the banking business have introduced certain special rules, which enter, if not expressly, impliedly, into the contract to pay upon demand. And until a formal demand is made no action lies for the recovery of a general deposit. In Branch v. Dawson, 33 Minn. 399, 23 N. W. 552, it is said: "By universal understanding on the part of bankers and depositors there is a condition attached to the undertaking of the bank. It is not its duty, as it is that of an ordinary debtor, to seek the creditor, and pay him, wherever found. It does not undertake to pay without respect to place, to pay absolutely and immediately, but its engagement is to pay at its banking house, when payment shall be called for there. Everybody understands that to be what it assumes to do. * This being the understanding upon which the deposit is made, it is parcel of the bank's contract to repay, that, as a condition precedent to its duty to repay, the depositor shall call upon it to do so at its banking house, and there is no default of the bank until such call is made." In Downes v. Bank, 6 Hill, 297, 299, Justice Bronson said: "Judging from the ordinary course of this business [between bank and depositor], I think the understanding between the parties is that the money shall remain with the banker until the customer, by his check, or in some other way, calls for its repayment; and, if such be the nature of the contract, the banker is not in default, and no action will lie, until payment has been demanded. No one could desire to receive money in deposit for an indefinite period, with a right in the depositor to sue the next moment, and without any prior intimation that he wished to recail the loan." Says Morse, in his work on Banks and Banking (in section 322): "We have already seen that it is a contract specially modified by

the clear legal understanding that the money shall be forthcoming to meet the order of the creditor whenever that order shall be properly presented for payment. It follows, therefore, that this demand for payment is an integral and essential part of the undertaking, and, it may be said, even of the debt itself. In short, the agreement of the bank with the depositor, as distinct and valid as if written and executed under the seal of each of the parties, is only to pay upon demand.

* * The undertaking of the bank is not to pay immediately and absolutely, but when payment shall be required. It is in no default till payment is demanded. Therefore no right of action exists until demand is made as stipulated for in the implied contract of deposit." In Watson v. Bank, 8 Metc. (Mass.) 217, the court said: "When money is deposited in a bank, to be drawn at the pleasure of the depositor, the bank is not liable to an action without a previous demand. The request is parcel of the contract, and must be proved. The bank agrees to pay to the order of the depositor; but, if it were liable to a suit without previous demand, it would be under the necessity of refusing all deposits, or of making special contracts in every case. The duties of the parties are reciprocal,-the one to pay on demand; the other to make such demand before a right of action accrues." In Freeman's notes on page 420, 19 Am. Dec., it is said: "Since a general deposit is a loan which the banker is obliged to pay when called upon by the draft of the customer, it is clear that there can be no default until the payment has been demanded and refused." A number of authorities are cited in this note to support the proposition. Indeed, it is the universal doctrine that a depositor cannot maintain an action for his deposit without a previous demand by check or otherwise for its repayment. Boone, Banking, § 57, and authorities cited in notes; Bolles, Banks, § 315, and note 1; 2 Am. & Eng. Enc. Law, 101, and note 1. The bringing of the suit does not amount to a demand in such cases. 1 Morse, Banks, § 289e; Downes v. Bank, 6 Hill, 297; Bank v. Bailey, 12 Blatchf. 480, Fed. Cas. No. 2,635; Payne v. Gardiner, 29 N. Y. 146. As we have already said, the purpose of the suit was to recover a general deposit of the defendants as bankers. The common money counts do not aver that any demand was made, or an excuse for the plaintiff's failure to make it. They were not subject to demurrer on this account, for the reason, as we have already stated, that it does not appear upon their face that a general deposit was sought to be recovered under them, or that the relation of depositor and banker existed between the plaintiff and defendants out of which the cause of action arose. A demand being a condition precedent to the maintenance of the suit, no recovery can be had upon these counts in their present form. It is true the evidence tends to show a demand was made, but it is as

essential to a recovery that the complaint should aver it as it is that the evidence should establish it. "When, by the express or implied terms of the contract, it was incumbent on the plaintiff, before the commencement of his action, to request the defendant to perform his contract, such request, being, as it were, a condition precedent, must be averred, * * * or there must be some allegation to dispense with it." 1 Chit. Pl. p. 340. See, also, 3 Enc. Pl. & Prac. pp. 251-256.

Appellees insist that the special count (numbered 9) does not contain a cause of action, and, therefore, no recovery could be had upon it. In this we cannot concur. Some of the reasons assigned in support of this insistence might have been made the basis of a demurrer, pointing out the defects in the sufficiency of the averments, but amendable defects cannot be made the ground for holding that a count contains no substantial cause of action. It is only necessary, in considering the other questions in the case, to deal with the two items of deposit,-one for $800, deposited September 16th, and the other for $678.30, deposited December 30th,-as the plaintiff, in her testimony, disclaims any interest or claim to the other items deposited by her husband and credited by the defendants to her account. The fact is undisputed that these two items were money which belonged to the plaintiff, arising from the proceeds of two drafts collected by the defendants, and placed to the credit of B. Tobias by M. S. Tobias upon the books of the defendants, and were paid out by defendants upon drafts drawn by B. Tobias by M. S. Tobias; that M. S. Tobias was, at the time the deposits were made, the husband of B. Tobias, the plaintiff. It is also without dispute that, when the account with the defendants was opened, both the plaintiff and her husband were strangers to the defendants; that she and her husband went to the defendants' place of business in company with W. B. Jones for the purpose of opening the account; that either Jones or the husband presented to the receiving teller of the bank a draft on New York, payable to the order of B. Tobias. As to which of them presented the draft to the teller, and as to whether the draft was indorsed by plaintiff in the bank or before going there, there is a conflict in the testimony. So, too, there is a conflict in the testimony as to what occurred pending the negotiations for the deposit,-the plaintiff testifying that Jones handed the draft to the teller, requesting him to deposit it to her credit; that the teller took the check, and, after examining it, replied he would do so, but that she would have to indorse it; that he handed it back to Jones, who in turn handed it to her, and, after indorsing it, she returned it to Jones, who handed it back to the teller. Her testimony tends to show that nothing else took place in the bank at that time. The testimony of the

other witnesses who were present during this transaction and examined by the defendants contradicts the plaintiff's statement on nearly every material point. Their testimony tends to show that the deposit was made by M. S. Tobias in the name of his wife, the plaintiff; that it was stated to the teller at the time that the deposits were to be drawn out upon checks to be signed by M. S. Tobias; that the teller then took the signature to be attached to the checks to be drawn on this account in a book kept by the bank for that purpose, which signature was written by M. S. Tobias. This signature, as written on the record, to be affixed to the checks, was "B. Tobias." Plaintiff denies that she heard any of the conversation relative to drawing out the money, or that she saw her husband give the signature to the teller. In fact, she practically denies that any of these things happened. The main contention on the part of the defendants is that the plaintiff is estopped to claim the money on account of her acts and conduct upon the occasion of the deposit. This, of course, depends in a measure upon whether the jury are reasonably satisfied from the evidence that the teller was instructed to honor drafts drawn by her husband, or the signature was given, at the time the deposit was made, which was to be affixed to drafts to be drawn, and whether the defendants relied upon this in paying out the money. There can be no doubt, nor can an inference to the contrary be drawn, if this occurrence took place at that time, that the plaintiff was present. If present, and although she may not have heard what was said and did not see the signature given, yet if, by her acts and conduct on the occasion, she led the bank to believe that she had intrusted the entire matter to Jones and her husband, or to her husband, to make the contract of deposit, and how the account was to be kept and how drawn out, and it acted upon it, she must suffer for her own neglect, rather than the bank. "If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he, with such belief, does act in that way to his damage, the first is estopped from denying that the facts were as represented." Carr v. Railway Co., L. R. 10 C. P. 317. “A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving." Gregg v. Wells, 10 Adol. & E. 90. "If any person, by actual expressions or by a course of conduct, so conducts himself that another may reasonably infer the existence of an agreement or license, and acts upon such inference, whether the former intends that he should do so

or not, the party using that language, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct." Cornish v. Abington, 4 Hurl. & N. 549. See, also, Swan v. North British Australasian Co., 7 Hurl. & N. 601. Negligent silence may work an estoppel as effectually as an express representation. Bigelow, Estop. 588; Trustees of Town of Brookhaven v. Smith (N. Y. App.) 7 L. R. A. 755, and note under "Silent Acquiescence" on page 756 (s. c. 23 N. E. 1009). So, too, acts or conduct, though nothing is said, if they are calculated to mislead, and do in fact mislead, will work an estoppel, notwithstanding there was no intention to do so. 2 Pom. Eq. Jur. §§ 805-809. The foregoing principles apply to the second deposit claimed by plaintiff as well as to the first, in the absence of evidence of a notification by her to the bank that it should be treated differently from the first in respect to drawing it out.. "A course of dealing between the bank and a single person may establish obligations as to its continuance, and, if nothing is provided to the contrary, will govern subsequent transactions of the same nature between them." 1 Morse, Banks, § 9. If her conduct on the occasion of the making the first deposit was such as to estop her, it is the equivalent to an assent by her to the agreement made with the bank as to how and by whom the deposits were to be withdrawn, and the bank had the right to presume that this agreement was to be enforced in the manner of drawing the checks upon the account, until some other and different agreement was made.

Twenty-three charges were requested by the plaintiff. They are not insisted upon in argument in detail. We must also decline to so consider them. The leading contention or insistence is that the court erred in giving the general affirmative charge in favor of the defendants. This point is well taken. The main question in the case is whether the plaintiff, by her conduct on the occasion of the first deposit, estopped herself to now claim these two deposits, which the bank has paid out upon drafts signed in her name by her husband. Under the evidence, this is one of fact to be determined by the jury under the principles of law above announced. Reversed and remanded.

by, and enforce such assessments "as in the case of city taxes" (Acts 1886-87, p. 776). Held, that the provision that the assessment should be enforced according to the law of 1886-87 was pertinent under the title, and therefore that the charter was constitutional.

2. Const. art. 4, § 2, provides that no law shall be revived or extended by references to its title only, but shall be re-enacted in full. City Charter of Montgomery, § 34 (Acts 189293, p. 368), provides that a city council shall enforce assessments for street pavements "as in the case of city taxes" (Acts 1886-87, p. 776). Held, that the city charter was an instrument complete in itself, and not an amendatory act, and that, therefore, the adopted provision need not be set forth in full.

3. The objection that a paving assessment was not based on the benefit to the property assessed, and therefore violated the fourteenth amendment of the United States constitution and section 24 of the Alabama Declaration of Rights, was not open to demurrer for generality. 4. The city charter of Montgomery provides that, after due notice to the owners, the city council shall hear and determine all complaints against paving assessments, and shall "correct the errors and supply omissions"; that assessments, when so passed on, shall have the force of judgments; and that delinquent property owners shall be cited to appear before the city court, and show cause why a decree should not be entered for a sale of their property, before the sale should take place. Held, that notwithstanding the provision giving the assessment, when passed on by the city council, the effect of a judgment, defendant's failure to appear before the council did not estop her from contesting the assessment in the city court, since that right was clearly recognized in the charter.

5. Where a city charter provided that before the sale of real estate for a delinquent assessment the owner should be cited to show cause why the sale should not be held, an owner could question the constitutionality of the assessment in the proceeding for its enforcement, and was not required to obtain its review by certiorari.

6. Const. U. S. Amend. 14, prescribes that no state shall deprive any person of life, liberty, or property without due process of law. City Charter of Montgomery, § 34, provides that property benefited by street paving shall be assessed for a reasonable amount, not exceeding one-fourth of the cost of the improvement in front of the property, and in no case exceeding $10 per front foot; that on the owner's complaint the city council should correct any errors in the assessment; and that delinquent property should not be sold to satisfy the assessment until the city court in equity so decreed after the owner had been afforded an opportunity to show cause why the decree should not be entered. Held, that the charter did not violate the constitutional provision above recited.

7. Nor did the charter, as set out in the preceding paragraph, violate Const. Ala. art. 1, § 24, providing that private property shall not be taken for a public use without just compensation.

Appeal from city court of Montgomery. Action by the city council of Montgomery against Letha Birdsong. From a decree for defendant, complainant appeals. Reversed.

The proceedings in this case were instituted by the city council of Montgomery, under provision of the act of the general assembly, regulating the sale of real estate in the city of Montgomery, for unpaid taxes for municipal purposes. The pleadings in the case and the facts relating to the cause are sufficient