79 Md. 312 | Md. | 1894
delivered the opinion of the Court.
On the thirteenth of January, 1892, Anderson, the appellant, drew his check in favor of Mary A. Dodge on J. J. Nicholson & Sons, bankers in the city of Baltimore,, for $692.03 and delivered it to the payee the same day. She forthwith deposited it to her credit in her account with the Old Town Bank of the same city, duly endorsed for collection. On the following day, the fourteenth, the Old Town Bank sent the check by its runner to the banking house of Nicholson & Sons where it was presented for payment shortly before eleven o’clock a. m., during the usual hours of business. Anderson had to his credit on deposit with Nicholson & Sons at that time five thousand dollars available for the payment of the check. Instead of getting cash for the check the runner accepted in lieu thereof a check drawn by Nicholson & Sons on the Western National Bank for the precise amount of Anderson’s check, and delivered up the latter to Nicholson
With this state of facts existing, the executor of Mary A. Dodge sued Anderson to recover the $692.03 due by him to her when the check was given on January the thirteenth, 1892; and the inquiry presented by the record is whether, under the circumstances, Anderson is still liable for that debt. It was held by the Court below that he was, and from the judgment against him he has appealed.
As between the parties to a check, the drawer remains liable upon it to the holder until the bar of the statute of limitations supervenes and releases him, if availed of, unless the omission or neglect of the holder to present it within a reasonable time after, its receipt has resulted in injury or loss to the drawer. A failure of the bank which is the drawee of the check, and which held on deposit a fund to meet it, by which failure that fund is lost, presents the usual, if not the only, case in which delay of the holder in malting presentment, or giving notice of dishonor, devolves loss upon him. Dan. Neg. Ins., sec. 1590. Speaking generally, what is! a reasonable time depends on the facts of each particular case; but it is thoroughly settled that the reasonable time allowed the holder for presenting a check when he receives it in the same place where the bank on which it is drawn is located, is till the close of banking horns on the next secular day; and if in the mean time the bank fails, the loss will fall on the drawer. Dan. Neg. Ins., sec. 1591; Byles on Bills, side page 14; Moule vs. Brown, 4 Bing., N. C., 266; Boddington & Davis vs. Schlencker, 4 Barn. & Adol. 752. Every drawer of a check assumes the risk of the drawee’s solvency during that period of time. It is consequently
Now, a check on a bank or banker is payable in money, and in nothing else. Morse, Banks & Banking (2d edition), p. 268. The drawer having funds to his credit with the drawee has a right to assume that the payee will, upon presentation, exact in payment precisely what' the check was given for, and that he will not accept, in lieu thereof, something for which it had not been drawn. It is certainly not within his contemplation that the payee should upon presentation, instead of requiring the cash to be paid, accept at the drawer’s risk a check of the drawee upon some other bank or banker. The holder had a right to make immediate demand for payment upon receipt of Anderson’s check, though she was not bound to do so. When her agent, the Old Town Bank — the collecting bank being the agent of the holder— (Dodge vs. Freedman’s Sav. &
The rule fixing the close of business hours of the next secular day as a reasonable time within which a check may be presented, so as to hold the drawer when drawn on a
Whilst the Old Town Bank was not bound to have made demand upon Nicholson & Sons when it was made, still having made it, and, by its own choice, not having received the cash, it cannot, if it has not used due diligence, claim the right to undo what it had done, and by a subsequent demand put itself in the position it would have occupied had it not made the first demand at the time it did make it, or done the act it then did. “ If presentment for payment be actually made on the very day
That Anderson was in fact injured by what was done is manifest, and it is no answer to say he might or would have been equally injured had the holder of the check remained passive until after the failure of Nicholson & Sons. In the one case the injury was the direct result of the payee’s negligence after the presentation of Anderson’s check to the drawees; in the. other, had it occurred, it would have been only incident to a mere permissive or lawful inaction or passivity.
The record shows that the runner of the Old Town Bank presented Anderson’s check at the counter of Nicholson & Sons about ten-forty-five a. m.; that Anderson had at that time ample funds to his credit with the drawees for its payment in cash, but that the runner surrendered the check and accepted Nicholson & Sons’ check on the Western National Bank in lieu of the cash. This check was not presented to the Western National Bank for nearly four hours after its receipt, though with due diligence it might have been presented within five or ten minutes after it went into the possession of the agent of the Old Town Bank; and if it had been then presented, or even had been presented within two and a half hours after its receipt, it would have been paid. The record further shows that two other checks for considerable amounts were drawn by Nicholson & Sons on the Western National Bank after the delivery of the one to the runner of the Old Town Bank, and both of- these were pre
Smith vs. Miller, 43 N. 7., supra, was an action for unpaid balance of the price of goods sold by the plaintiffs to the defendants. The defendants set up a defense of payment by a draft drawn by them on James K. Place & Co., of New York, to the order of the plaintiffs. The draft was received by the plaintiffs by mail on the morning of November 19th and was immediately indorsed by the plaintiffs, and about one-thirty in the afternoon of the same day was presented for payment at the counting house of J. K. Place & Co., the drawees, who were merchants in New York in good standing. In payment of the draft J. K. Place & Co. gave them check on the Manufacturers National Bank to the order of the plaintiffs for the full amount. At the time the check was received by the plaintiffs J. K. Place & Co. had funds in that bank to meet the check, which would have been paid, had it been presented on that day. The check was deposited on the same afternoon in the Citizens Bank for collection, and was not presented for payment at the Manufacturers Bank till twelve m. the next day, on the morning of which day J. K. Place & Co. failed, and on that account payment of the check was refused. It was held the plaintiffs could not recover on two grounds, the second of which was their negligence in not presenting the check for pay
Merchants Nat. Bank vs. Samuel, 20 Fed. Rep., supra, was a suit by the indorsee of a draft against the drawers. It was received by the plaintiffs on June 18th, 1883, and presented for payment on the same day. Instead of paying cash, the drawees gave the plaintiff a check on their bank in New York, which was accepted, and the draft was delivered up to.the payee. The check was not presented until June 19th, and was then dishonored. Upon refusal, plaintiff went to the drawees of the draft and returned the check and received the draft back again,
Merchants Bank of Baltimore vs. Bank of Commerce in New York, use of Hoffman, 24 Md., supra, though not strictly in point throughout, is an express decision as to what constitutes negligence on the part of a collecting agent. There the New York bank transmitted to the Baltimore bank for collection a draft drawn by Hoffman & Co. on Josiah Lee & Co. It was received on the morning of October 30th, 1860, and presented by the runner of the Merchants Bank to the drawees at one p. m. of the same day. Lee & Co. gave the runner a check drawn by them on the Mechanics ¡Bank, and the runner surrendered the draft, and, though the banking house of Lee & Co. and the Mechanics Bank were in the same block, he took the check to the Merchants Bank without presenting it for payment. A little before three p. m. of the same day the check was presented to the Mechanics Bank but dishonored, and Lee & Co. suspended. The runner of the Merchants Bank returned the check to Lee & Co., and got back the draft, and had it protested. Other checks drawn by Lee & Co. after the one in question, and aggregating $13,000, were presented and paid. There was evidence tending to show that Lee & Co. were of doubtful credit; and upon other points there was some conflicting evidence. The Court instructed the jury that the Bank of Commerce was entitled to recover from the
It follows from the views we have expressed that the Old Town Bank as the agent of the appellee’s testatrix, failed to use due diligence and skill to collect the check given to, it by Nicholson & Sons on the Western National Bank, whereby injury was done to Anderson; and, as a consequence, that Anderson was discharged. This being so, there was error in granting the appellee’s prayer and in rejecting the appellant’s first prayer. The latter should have been granted, and, as it is decisive of the case, the judgment must be reversed, without awarding a new trial.
Judgment reversed, with costs above and below, without awarding a new trial.