When this case was here on the former appeal, Bank v. Trust Co., 112 N. C., 344, the court held that it was negligence per $e for a bank to send a draft or check for collection to the bank on which the check was drawn; and further, that when the bank which has committed such negligence sues the bank, which had forwarded the check, for the amount which had been credited, and such original bank sets up as a counterclaim the negligence of the plaintiff in not notifying it of nonpayment, and in the delay of over a month without inquiry, that this was negligence per se, but that the burden of proof rested on the correspondent bank, which had forwarded the check to the plaintiff bank, to show that it had sustained damages, which raised an issue for the jury.
The defendant asked the court to charge: “If defendant had paid -cash for the draft to the Reliance Fertilizer Company and admitted its liability for same, then if the jury shall find from the evidence, by the greater weight, that the plaintiff was negligent in not notifying the ■defendant within a reasonable time of the nonpayment, and thereby put it out of the ability of the defendant or its customer to collect the check, the defendant would not be liable to plaintiff in this action, and it would be your duty to answer the issue No.’ ” The court so charged but erred in adding, “Provided you further find the check would have been paid if it had been presented in due course and but for the negli*256gence of tbe plaintiff.” If tbe plaintiff, after giving credit to its customer for tbe check remitted to it, and tbougb tbe check would not have' been paid if presented, still if for forty days it delayed to inform tbe customer that tbe check bad been lost or bad not been paid, and in the-meantime tbe drawer, Lybrand, bad become insolvent, thus depriving tbe customer bank of tbe recovery from Lybrand of tbe amount which it bad credited and paid to tbe fertilizer company for such check, tbe plaintiff bank certainly cannot recover tbe sum thus lost by its customer by such negligent delay, and this irrespective of tbe fact, if it be a fact,, that tbe drawee bank would not have paid tbe check if promptly presented, or even if it was presented and payment refused. It was tbe duty of tbe plaintiff bank to give prompt notice of tbe refusal to pay or of tbe loss of tbe cheek so that tbe customer bank should have opportunity to protect itself.
If upon tbe evidence tbe jury shall find that if such notice bad been given in due course by tbe plaintiff bank tbe customer bank could batre saved itself from loss, then tbe jury should have found upon tbe issue that tbe defendant bank was entitled to recover on its counterclaim any loss it sustained by reason.of such negligent delay.
It is not necessary in this view to consider tbe other exceptions.
Error.