Conceding without deciding that negligence on the part of the plaintiff, as alleged in the answer, would have estopped the plain*247tiff from recovery in this action, we are of the opinion that there was no evidence at the trial tending to sustain these allegations. The submission of the first issue and the instructions in the charge of the court to the jury with respect to said issue was error for which the plaintiff is entitled to a new trial.
The evidence showed that at the time plaintiff employed Roy L. Smith as its bookkeeper, plaintiff, through its officers, made due inquiry as to his character and qualification as a bookkeeper, and that the information disclosed by such inquiry justified his employment by the plaintiff. Plaintiff had no reason to suspect that its bookkeeper, Roy L. Smith, was a forger until 14 December, 1934, when an investigation of his accounts as recorded in plaintiff’s hooks showed discrepancies in said accounts which led to the discovery that he had forged and collected from the defendant the checks set out in the complaint.
The evidence further showed that it was the duty of Roy L. Smith, as the bookkeeper of the plaintiff, to keep plaintiff’s account with the defendant, and at the end of each month to call for and receive from the defendant the monthly statement of said account, together with all checks which had been paid by the defendant and charged to plaintiff’s account during the preceding month. It was not the duty of the secretary or of any other officer of the plaintiff to examine said statement and canceled checks. Roy L. Smith was employed by the plaintiff for that purpose, and plaintiff relied on him to examine the said monthly statements and canceled checks, for the purpose of ascertaining whether or not there were any errors in the statements. The receipt by Roy L. Smith, as the authorized agent of the plaintiff, of the canceled checks paid by the defendant during the preceding month, at the end of the month, was the receipt of said checks by the plaintiff.
On all the facts admitted in the pleadings and at the trial, the liability of the defendant to the plaintiff in this action must be determined by the provisions of the statute (O. S., 220 [h]), which reads as follows:
“No bank shall be liable to a depositor for payment by it of a forged check or other order to pay money, unless within sixty days after the receipt of such voucher by the depositor he shall notify the bank that such check or order is forged.”
Under the provisions of this statute, the defendant is not liable to the plaintiff for any of the forged checks set out in the complaint and paid by the defendant more than sixty days preceding 14 December, 1934. The defendant is liable to plaintiff for all said checks which were paid by the defendant within sixty days preceding 14 December, 1934.
The action is remanded to the Superior Court of Guilford County for a new trial in accordance with this opinion.