The promise of a bank to follow precisely a depositor's signature card does not relieve the depositor from the duty of examining the statements and checks forwarded to it by the bank, and, in order to hold the bank liable for forged checks, to notify the bank within 60 days thereafter of any forged checks charged to the depositor's account.

G. Franklyn Fischer & Associates, Inc., filed an action against the First National Bank of Atlanta in which the plaintiff sought to recover the total face amount of described checks allegedly paid out of the plaintiff's account with the defendant bank over a period of 18 months. It was alleged that such checks had been forged and in addition to the face amount of the checks the plaintiff sought to recover $7,500 as expenses of litigation. The defendant's general demurrers to the plaintiff's petition were sustained and time allowed to amend. When the plaintiff failed to amend, the trial court entered a final judgment sustaining such general demurrers and dismissing the petition. The plaintiff now assigns error on such final judgment adverse to it.

No contention is made that the allegations of the petition show that the plaintiff complied with Code 13-2044 so as to authorize a recovery thereunder, and the sole contention made is that sufficient facts are alleged in the petition to excuse the plaintiff from having to comply with such section. Under the decision of this court in the case of White v. Georgia R. Bank &c. Co., 71 Ga. App. 78 (30 S. E. 2d 118), and the cases there cited, there are circumstances wherein the notice referred to in such Code section need not be given, and it is only when a bank has in good faith paid a forged check that it is entitled to such notice.

In the case of Cesaroni v. Savannah Bank &c. Co., 90 Ga. App. 107 (82 S. E. 2d 172), it was held that: "The fact that the forgeries were committed and concealed by a person whom the depositor entrusted to examine his statements and vouchers was not sufficient to excuse the depositor from giving such notice [the notice provided for by Code 13-2044] to the bank." In Citizens &c. Bank v. Ponsell, 33 Ga. App. 193 (125 S. E. 775), it was held that duress by a husband who had forged checks on his wife's account was an excuse for the wife's failure to so notify the bank and expose the forgery. Such case was decided on demurrer, and after trial and a verdict for the bank, the judgment of the trial court overruling the plaintiff's motion for new trial was affirmed by this court (Ponsell v. Citizens &c. Bank, 35 Ga. App. 460, 133 S. E. 351).

In Samples v. Milton County Bank, 34 Ga. App. 248 (129 S. E. 170), it was held that, in order to require of a depositor the notice referred to in Code 13-2044, supra, the check paid must be a forgery as contemplated by the criminal statutes, but where a bank paid money from a depositor's account because it believed the person obtaining the funds was authorized by the depositor to do so, Code 13-2033, supra, was not applicable, and no notice was required in order to hold the bank liable. In the absence of Code 13-2044 the good faith or bad faith of the bank is immaterial and the liability of the bank to the depositor for the amount of the depositor's account can only be discharged by payment to, or on the order of, the depositor.

Therefore it is seen that there are two circumstances where such notice is not a prerequisite to a recovery, (1) where the bank has not paid the forged or raised check out of the depositor's account in good faith, and (2) where the depositor for other sufficient reason is relieved from giving such notice.

The plaintiff in the present case does not contend that it had sufficient reason for failing to give such notice other than the lack of good faith by the bank in paying such forged checks. The plaintiff alleged that the bank account was opened about April 7, 1956, that only two "authorized" signatures were given the defendant, that thereafter deposits and withdrawals were made, that on or about August 18, 1958, the plaintiff, by its president, notified the defendant bank that it had been paying checks from the plaintiff's account on forged signatures, that on August 18, 1958, the defendant bank agreed "to be careful and see that the signature card would be followed precisely and not pay any more forged checks," that after so notifying the plaintiff and after obtaining the plaintiff's confidence that no more forged checks would be paid the defendant bank continued to pay forged checks.

Was the promise made by the bank, through its attorney, to try and follow the plaintiff's signature card precisely, followed by the paying of 51 checks over a period of 7 months such a "lack of good faith" as to relieve the plaintiff from giving the notice otherwise required by Code 13-2044, supra? The letter written to the plaintiff promised no more than Was required of the bank had the letter never been written. In the absence of Code 13-2044, supra, with or without the letter, the liability of the bank was absolute, but with the enactment of Code 13-2044 a duty was placed on all depositors to notify the bank within a given period of time of forged checks being charged against the depositors' accounts. The letter written to the plaintiff in the present case did not relieve the plaintiff from its duty to examine its statements and canceled checks within 60 days after they were returned by the bank so as to prevent a series of forgeries over a period of time. Cesaroni v. Savannah Bank &c. Co., 90 Ga. App. 107, supra.

The petition does not shoW that the forged checks were not paid in good fail nor does it show any other sufficient reason to excuse the plaintiff from giving the defendant bank the notice required by Code 13-2044, supra, and the trial court did not err in sustaining the general demurrers to the plaintiff's petition.

Judgment affirmed. Felton, C. J., and Bell, J., concur.