On appeal from the Superior Court, Law Division, Special Civil Part, Morris County.
Furman and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Plaintiff, Kerry M. Best, filed a complaint against defendant, Dreyfus Liquid Assets, Inc., for failure to stop payment on a check in the amount of $2,034, asserting negligence and breach of contract and of state banking laws. Defendant denied plaintiff's allegations and asserted defenses of failure to state a cause of action, ineffective notice and unjust enrichment. The trial court found for defendant and ordered involuntary dismissal at the close of plaintiff's case. Plaintiff appeals.
Plaintiff formulated plans in February 1984 to take a trip to Europe during May 1984 and in mid-March scheduled her vacation for the first three weeks of May. Plaintiff placed a deposit with a London based tour group for a one week trip to Florence beginning May 16, 1984, the last of her three weeks. She paid the balance of $2,034 for herself and her sister by check dated April 17, 1984.
Although plaintiff denied signing a contract with the tour group, she did sign and send to it a terms of booking form. She indicated that "if this [booking form] came to me beforehand which probably it did then I'm sure that I noticed that
there were cancellation charges depending on how far in advance you cancelled the trip."
The check in question was drawn on plaintiff's Dreyfus investment account, on which she could write checks of $500 minimum. No means to record check transactions was provided to her, but she received cancelled checks as they were written, with account statements. She kept her own record of checks by amount and payee, but not by preprinted check number because "[t]hey came back as you wrote them."
Shortly before her vacation began, plaintiff learned that her employer would not allow her a three weeks vacation. Therefore, she decided against the week in Florence and on April 24, 1984 placed a telephone call to Dreyfus to stop payment on her check. She advised the Dreyfus representative of the amount, account number, the payor and the payee of the check. She erroneously stated that the date of the check was April 16, 1984 instead of the 17th and indicated that the check number, of which she was uncertain, was between 14 and 17. She claims she was not told the exact date and check number were essential and that she was advised the check would be stopped and written confirmation sent.
Upon receipt of the stop payment confirmation, plaintiff signed and returned the original together with a $5 check. A photocopy of the original confirmation and plaintiff's carbon copy were introduced at trial. The check number on the photocopy is "17," although the carbon appears to reveal a "17" superimposed on a "14." The correct check number was "15." The term of the confirmation statement stipulates that the signor agrees
that this stop payment order shall not be effective as to any check which is not accurately described above, or which has previously been paid or certified by the Bank. I agree that the Bank shall have a reasonable time to process this stop payment order.
Plaintiff subsequently called the New York office of the tour group to cancel her travel plans. On May 2, 1984, she called Dreyfus to confirm the stop payment order and was told that
the check "hadn't come through and if it did they would call me." On May 5, 1984 plaintiff left on her trip, returning on May 15 or 16.
After her return, plaintiff received a 40 percent refund check from the tour group with a letter explaining there was a 60 percent penalty fee for cancellation. She called Dreyfus and was informed that the check had been paid because she had not indicated the proper check number or date. No stop payment was carried out on any check written on her Dreyfus account. She testified that if she was informed that ...