124 Wis. 73 | Wis. | 1905
We have no doubt of the correctness of the ■court’s finding of fact that by the general indorsement of the ■check in question, its acceptance by the bank, and the credit of the amount as cash to the plaintiff in his general account to be checked against as he saw fit, with nothing to qualify the effect of such acts, the bank became the owner of the check, as distinguished from a mere agent to collect the same •on behalf of the plaintiff. All of the acts above recited prima
Such being the transaction, the right of the defendant to charge back the amount of this check or to collect from the plaintiff is only that resulting from the relation of indorsee and indorser. The rules governing that relation are familiar,, and largely now codified in our Negotiable Instrument Law, ch. 356, Laws of 1899. In order to charge indorser upon a check or inland bill of exchange payable on demand, presentment must be made by the holder within a reasonable timo after it comes to his possession. Sec. 1684-2. Such reasonable time is not fixed by statute, but by consensus of authority, in absence of special circumstances of excuse, is limited' to the next business day, or, if the bank upon which the check is drawn is at another place, the cheek must be forwarded to the place of payment on the next business day, and presented at latest upon the day following its receipt at the place of payment. Gifford v. Hardell, 88 Wis. 538, 60 N. W. 1064;, Lloyd v. Osborne, 92 Wis. 93, 65 N. W. 859; Grange v. Reigh, 93 Wis. 552, 67 N. W. 1130. The check in question never was presented for payment until October 25th or 26th,. and clearly, by such delay, the indorser was discharged unless such delay was excused. The only excuse suggested is the loss of the check. , If it be conceded that the defendant was guilty of no negligence in adopting the United States mails as a method of transmission, nor in sending the check direct to the bank upon which it was drawn, thus taking-chances of acquiring prompt knowledge whether it was honored or dishonored when it reached the payee, nevertheless
Erom the foregoing no conclusion is possible save that long prior to October 19th, when defendant informed him of the loss of the check, plaintiff had been discharged from liability thereon as indorser. But it is urged that, by- co-operating at the request of the defendant in obtaining a duplicate in order that the same might be used in lieu of the original, he waived the previous omissions on the part of the defendant, and renewed his liability. Having been entirely discharged, any renewal of his liability must be by new contract. Tebbetts v. Dowd,, 23 Wend. 379; Knapp v. Runals, 37 Wis. 135. The question therefore arises whether the transaction detailed in the evidence, about which there is no substantial dispute, amounted to a contract on the part of the plaintiff to assume a new liability as indorser on Speich’s new check. Doubtless, when a check has been lost or destroyed, so that the payee or his assigns has not received the money thereby ordered paid, the drawer may give a new and independent check, treating the old transaction as canceled, and in that case the rights and liabilities of all parties may be as if the new check were given upon any other consideration. Equally, however, the parties may proceed on the purpose of merely supplying written evidence of the former transaction, to take the place of that lost, simply to facilitate proceedings or perfect records. In that case no new contract is made. All
In the case at bar there is certainly nothing, except the obtaining and indorsing of the new check, to prove an intent' on part of either plaintiff or defendant that the latter should assume any additional responsibility. All the evidence indicates that the duplicate was deemed to be needed by ther
Another consideration which obstructs any implication of waiver or new promise by plaintiff is absence of knowledge-on his part of the facts upon which his discharge from liability rested. No information was given him as to when the loss of the check was discovered, or whether a due presentment had been made or payment refused. Only when an in-dorser is informed of all the material facts is a new promise of liability to be implied from acts which otherwise might justify it. Low v. Howard, 10 Cush. 159; Hamilton v. Winona S. & L. Co. 95 Mich. 436, 54 N. W. 903.
By the Court. — Judgment affirmed.