[First Nat. Bank of Birmingham v. First Nat. Bank of Newport.] on the transfers themselves, and it is not alleged that the plaintiff had indorsed them. Prima facie, therefore, the transaction was not the same as that arising from the sending of a deed to a bank to be delivered to the grantee upon the payment of the purchase money, but, on the contrary, the facts appearing on the transfers, in the absence of any indorsement by the plaintiff, must have suggested to the defendant that they were held by the plaintiff as collateral security. Hence, we are of the opinion, it may be declared as a matter of law that the receipt for collection by a bank engaged in transacting a general banking business, of papers transferable by indorsement, which, although not of themselves evidence of an indebtedness, show by the indorsements thereon that the person sending them must hold them as collateral security for an indebtedness, and which are, in fact, held as such collateral security, is within the usage, custom and ordinary course of business of banking institutions; and, therefore, that the act of receiving such papers by the cashier of such bank is within the scope of his authority, and not his individual act, but that of the bank, in the absence of any knowledge or notice on the part of the sender of any express limitation on the authority of the cashier with respect to the character of the papers which he may receive for collection. It results from what has been said that plaintiff's replication to defendant's seventh plea to the third count was a complete answer to said plea, and the demurrer to the replication was, therefore, properly overruled. This plea set up the defense that the transfers were received by an agent of defendant (but by what agent is not alleged); that defendant was not, at the time, engaged in the business of receiving land transfers for the purpose alleged, that is, for collection; that it had never by any act held itself out as being engaged in the business of receiving such transfers, and had not authorized its agent to receive the same, and had no knowledge that he had done so, prior to their loss, and had never acquiesced in or ratified the agent's act. To this plea plaintiff replied that said transfers had been received by the cashier of defendant, who had authority to receive all papers sent for deposit and collection, and who had acknowledged by letter the receipt of the same, and that plaintiff had no notice of the cashier's want of authority [First Nat. Bank of Birmingham v. First Nat. Bank of Newport.] to receive such papers. The complaint shows that the defendant is a national bank, organized under the nattional banking laws of the United States, and such banks are authorized by their charter to engage in a general banking business and are presumed to be engaged in such business. The defense set up by the plea was, not that the act of the bank in receiving such transfers was ultra vires, but that, inasmuch as the defendant was not engaged in the particular business of receiving for collection transfers of land certificates, the act of its agent was beyond the scope of his authority, and therefore not binding on his principal. The effect of the replication, construed in the light of the principles we have stated, was to assert that the transfers were received by an agent who was held out by the defendant as having authority to bind it by any act done within the scope of the general usage, practice and course of business of banking institutions, and that plaintiff had no notice of any limitation upon the agent's authority, and the act was, therefore, within the scope of his authority. If the facts. stated in the replication were true, then the act of the cashier in receiving the transfers for the purpose for which they were sent was, in law, the act of the defend ant. It is an elementary rule of pleading that a plea which professes to answer the whole of a complaint, or of any count thereof, is bad on demurrer if it is an answer to a part only.-Galbreath v. Cole, 61 Ala. 141; Wilkinson v. Moseley, 30 Ala. 562; White v. Yarbrough, 16 Ala. 109. And when the cause of action is sufficiently stated to authorize a recovery of any, even nominal damages, a partial defense denying the right to recover a part of the damages claimed, must be availed of by a motion to strike out the objectionable averments, or by objection to the evidence and through instructions to the jury.Kennon v. W. U. Tel. Co., 92 Ala. 402. The fifth plea, though assuming to answer the whole of the first and third counts, does not negative the cause of action, nor present any defense to the whole of the counts, but only to that part of them which claims as damages the expenses incurred by plaintiff in prosecuting suits in Texas to establish the lost transfers. The defense it seeks to set up is, that the plaintiff was negligent in failing to have said transfers recorded, as, by the laws of Texas [First Nat. Bank of Birmingham v. First Nat. Bank of Newport.] which are set out in the plea, it might have done, and that the incurring of said expense was rendered necessary only by reason of such negligence. It is manifest that the failure to record the transfers did not contribute in any degree to the loss of the transfers, and that, conceding the truth of the facts alleged, plaintiff would still be entitled to recover nominal damages at least for the failure of defendant to exercise ordinary care to keep the transfers and deliver them to plaintiff on demand. We hold, moreover, that the failure to record the transfers was no defense to the recovery of the special damages claimed. The demurrer to this plea was properly sustained. The case was tried by the court without a jury, and the judgment of the court is assigned as error. It is insisted by counsel for appellant that the evidence fails to show that the transfers were received by the cashier, but we are of the opinion that the evidence on this point was sufficient to justify the conclusion that they were so received. It shows that they were sent directed to the cashier of the bank; that three days thereafter a postal card acknowledging their receipt and purporting to come from the cashier was received by plaintiff; that this postal card was one of a number of printed forms used by defendant to acknowledge the receipt of papers sent to it; that the writing on the card was that of a clerk who had charge of the collection department under the direction and control of the cashier; and that the name of the cashier was printed thereon, instead of written by the cashier himself. In the absence of any evidence tending to show that the cashier did not receive the transfers, it must be presumed from the facts shown that the package reached the cashier to whom it was directed, and that he had knowledge of its receipt. The impossibility of more direct proof on the part of the plaintiff justifies the presumption. It was not necessary in this action to prove, with the particularity required to show title to land, the execution and contents of the transfers, and it was competent for the witnesses to call the papers transfers," without describing their contents or proving their execution. The execution and contents of the transfers were not in issue. Plaintiff deposited with defendant what purported to be transfers of Texas land certificates, and these it was entitled to [First Nat. Bank of Birmingham v. First Nat. Bank of Newport.] have restored to it, and defendant was liable to respond in damages for failing to restore them, whether they were or not in fact such transfers or duly executed as such. The damages claimed are not the value of the transfers, but the expenses incurred in substituting them, not exceeding their value as a security. It is shown that each "called for one section, six hundred and forty acres, of Texas land, and that they were afterwards substituted, partly by litigation and partly by the voluntary act of the only person who could substitute them, and the land called for procured upon the substitutes. We think this evidence, however slight, was sufficient, under the circumstances, to show that the value of the transfers as a security was equal to the damages legally proven. The defendant offered no evidence on the trial of the case, and the testimony of the plaintiff showed only that the transfers had been lost, or had disappeared, but how, or under what circumstances, whether they had been mislaid, or stolen, or destroyed, or inadvertently delivered to the wrong person, does not appear. The presumption is conclusive, therefore, that the defendant failed to exercise that degree of care in keeping them which the law imposed on it. The loss of paper by a bank to which it had been sent for collection carries with it the presumption of negligence and want of care, and the burden of proof to rebut the presumption is on the bank.-Chicopee Bank v. Seventh Nat. Bank, 75 U. S. (8 Wall.) 641. And it is a general rule, that in an action against a bailee for the failure to redeliver the property bailed, if the proof shows such failure, prima facie negligence will be imputed to the bailee; and if the testimony of the plaintiff shows only that the property was lost, the burden of showing the circumstances of the loss is devolved on the defendant; and unless the evidence shows due care by him according to the nature of the bailment and the property bailed, he will be held responsible for the breach of his contract to redeliver the property.-Prince v. Ala. State Fair, 106 Ala. 346; Seals v. Edmondson, 71 Ala. 512; Ouderdirk v. Central Nat. Bank, 119 N. Y. 263; Pattison v. Bank, 80 N. Y. 82; First Nat. Bank v. Trent, 39 Ohio St. 705; First Nat. Bank v. Graham, 85 Pa. St. 91. Under the testimony, therefore, plaintiff was clearly entitled to a judgment, and the final question presented is the correctness of the [First Nat. Bank of Birmingham v. First Nat. Bank of Newport.] court's finding as to the amount of damages awarded. One of the well recognized methods of raising an objection to illegal damages claimed in a complaint is by objecting to the evidence offered to prove such damages. Kennon v. W. U. Tel. Co., 92 Ala. 402. This method defendant availed itself of by objecting to the evidence tending to prove the various items of expense incurred by plaintiff in prosecuting the suits to procure substitutes for the lost transfers. It is insisted by counsel for appellant that the expenses thus incurred, and which were allowed by the court as a part of the damages awarded, could not have been within the contemplation of the parties at the time the transfers were delivered to defendant, and that the claim for such damages is based on circumstances that were special and exceptional, and not suggested, nor likely to be suggested, by the appearance of the transfers; and, therefore, such damages were not the natural and proximate result of the breach of the contract. But the measure of the recovery is not varied by the fact that the parties did not have in view as the result of the breach of the contract, the necessity of instituting legal proceedings to establish and substitute the lost transfers. The law, and not the contemplation of the parties, fixes the measure of damages.—Collins v. Stephens, 58 Ala. 545. And the rule of law is, that the damages recoverable for the breach of a contract must be the natural and proximate consequences of the breach, such as would result in the usual course of things, as distinguished from accidental or collateral injury or from such as would spring out of special circumstances not usually attendant upon such transactions.-Daughtery v. Amer. Un. Tel. Co., 75 Ala. 170; Collins v. Stephens, supra. The circumstances from which plaintiff's claim for damages arises are not special or exceptional, but, on the contrary, are such as the parties must have had in contemplation, if they had contemplated any breach of the contract and the prob able consequences thereof. The natural and proximate damages resulting to plaintiff from the loss of the transfers was the amount of their value as a security, not exceeding the amount of the debt secured, if they could not be substituted; and if they were capable of being substituted or restored, the amount of the expense of procuring such substitution, not exceeding their value |