dissenting:
I do not concur with a majority of the court in the decision of this case. The action, in form, is in tort, but upon a moment’s reflection it will be apparent that the action is founded upon a contract. The banker receives the funds of his customer on deposit,'and agrees with the customer to pay checks drawn by him on the bank, so long as the customer has money to his credit in the bank. This is the contract existing between the banker and the depositor when an account is opened in a bank, and whenever the bank violates that contract by refusing to pay a check on the bank, where the depositor or drawer of the check has sufficient money on deposit to pay the check, the contract is broken, and an action will lie on that contract to recover such damages as the depositor has sustained. In the case under consideration the bank refused to pay the check of the plaintiff although it had in its hands money .belonging to him in amount sufficient to pay the check, and while the action is, in form, case, it is predicated upon the contract, and, being founded on the contract, plaintiff is entitled to recover such damages as the evidence shows he has sustained, and no more. But although he may not have proven any actual damages, yet he will be enabled to recover nominal damages. This is the rule established in the well conceded case of Marzetti v. Williams, 1 Barn. & Adol. 415. Here, the proof fails to show any actual damage, and there is no evidence tending to prove malice, fraud or oppression on the part of the bank, and in such a case, in my opinion, no recovery could he had for more than nominal damages.