28 Gratt. 165 | Va. | 1877
This case is before us ou a writ of supersedeas awarded by one of the judges of this court to a judgment of the circuit court of the city of Richmond,, rendered in an action of assumpsit instituted in said circuit court by the plaintiffs in error (Blair & Hoge) for the benefit of Thomas P. Hoge, against the defendant in error, Nathaniel M. Wilson.
The declaration contains the common counts only, to-wit, for goods sold and delivered, for work and labor done, account stated, and the usual money counts.
The bill of particulars filed with the declaration is an account of Blair & Hoge against Wilson for “8,786 lbs. of tobacco at $8, $29,888.”
The defendant pleaded non assumpsit and payment; upon which several pleas issues were made up and tried by a jury, and a verdict was rendered for the defendant, and judgment entered thereon accordingly.
On the trial the court gave an instruction to the jury to which the plaintiffs objected. The objection was overruled and the plaintiffs excepted.
After the jury rendered their verdict, the plaintiffs, moved the court to set it aside and grant them a new trial, on the ground that the verdict was “not sustained by the evidence and was against the evidence.” The motion was overruled, and they again excepted.
The fir'st bill of exceptions sets out the facts proved on the trial, and the second bill refers to and certifies-those facts as “all the facts proved on the trial.”
It appears from the certificate of facts, that in the latter part of March 1865, Blair & Hoge (the plaintiffs), merchants of the city of Richmond, sold and delivered to the defendant Wilson, also a merchant of
The check was not presented for payment at the Farmers Bank on the day of its date and delivery aforesaid. On the following day (Sunday) the city was evacuated by the Confederate army then occupying it, and was entered and taken possession of by the Federal army at an early hour on the next day (Monday); and all business by the banks was necessarily prevented and suspended on that day, and for several weeks thereafter, until the officers of the banks, who had left the city, returned and resumed business. In the dreadful conflagration which occurred in the city on that memorable day (the 3rd of April), the banking houses of both banks were burned, and the officers of the Bank of the Commonwealth, on their return to the city, found amongst the debris of their banking house and contents the check aforesaid, which was presented to the proper officers of the Farmers Bank at the place where the bank had resumed business for payment; but payment was declined, for the reason
After the refusal of the Farmers Bank to pay the check, but how long after does not appear, Blair & Hoge had a settlement of their accounts with the Bank of the Commonwealth, and the check was surrendered to them. They did not at once present the check to Wilson for payment, or then give him notice of its non-payment by the Farmers Bank; for it seems, that on the 3rd of April when the bank buildings were burned, the business house of Wilson in the city was also burned, and there was, for a time, uncertainty and confusion as to the whereabouts of any one; as soon as they found him (but how long this was after they had received the check from the Bank of the Commonwealth was not proved,) they notified him pf the non-payment of the check by the Farmers Bank, and called on him to pay it; which he refused to do.
It sufficiently appears, that at the time the check was given, Wilson had funds in the Farmers Bank to his credit more than sufficient to pay the check; and it does not appear that he ever afterwards had a sum to his credit in the bank less than the amount of the check, and the cashier of the bank testified that if the cheek had been presented on the day of its date, he would have paid it.
It further appears that Blair & Hoge used about $70,000 Confederate currency, in paying off debts after the first, day of April, and would have used in like manner the amount of the check, if it had been paid on the day of its date or at any time thereafter
Such being in substance the facts proved, the court gave to the jury the instruction excepted to.
It is in these words: “If the jury shall believe from the evidence, that on the first day of April 1865, the defendant gave to the plaintiffs, in full payment for the tobacco mentioned in the bill of particulars, his check on the Farmers Bank of Virginia, which check was accepted by the plaintiff in full payment of the account; and the jury shall further believe that at the time of drawing the said cheek the said Wilson had good and sufficient reasons to believe that he had in hand funds to meet the said check, and the jury shall be satisfied from the evidence that in fact the said check would have been paid if it had been presented upon that day; the jury are instructed, that the receipt of said check by the plaintiffs extinguished their demand upon the account sued upon, and that they •cannot recover in this action.”
Was any error committed in giving this instruction?
It was a fact not controverted on the trial, or, if controverted, it was put beyond dispute by the proof, that in the latter part of March 1865 the plaintiffs sold and •delivered to the defendant the tobacco mentioned in the account filed with the declaration, for the sum therein stated, to he paid in Confederate currency. The amount of the account was a debt owing by the defendant to the plaintiffs. It was a fact equally well established, that the cheek was given for this debt. The suit was upon the account, to recover the amount thereof; and evidence was offered by the defendant to
A check has been defined to be “a draft or order-upon a bank or banking house, purporting to be-drawn upon a deposit of funds for the payment at all-events of a certain sum of money to a certain person therein named,- or to him or his order, or to bearer,, and payable instantly on demand.” 2 Daniel on Heg. Ins., § 1566.
It is sometimes inaccurately described as “a bill of exchange payable on demand,” or as, “in legal effect, an inland bill of exchange, drawn on a banker, payable to bearer on demand.” While it has many of the properties of bills, it has several peculiar characteristics.
“ Bank checks,” says Mr. Justice Sioayne, delivering-the opinion of the supreme court of the United States in the case of Merchants’ Bank v. State Bank, 10 Wall. U. S. R. 604, 647, “are not bills of exchange, bufr have many of the properties of such commercial-paper; and many of the rules of the law merchant are-alike applicable to both. Bach is for a specific sum-payable in money. In both cases there is a drawer, a. drawee and payee. Without acceptance, no action can be maintained by the holder upon either against-the drawee. The chief points of difference are, that a check is always drawn on a bank or banker. Ho days-of grace are allowed. The drawer is. not discharged
The giving of a check for an antecedent debt is not an absolute payment and extinguishment of the debt in the absence of an agreement giving it that effect. Ordinarily, it is only a means of payment, and the debt will not be extinguished unless and until the check be paid, or unless loss be sustained by the drawer in consequence of the laches of the holder, in which case the debt will be discharged in proportion to the loss sustained. If the check be not paid, and the payee is without fault, his right of action against the drawer for the debt, which has been merely suspended by the giving of the check, revives, and he may have recourse to the drawer either upon the debt or upon the check at his option. The holder is allowed a reasonable time after the check is drawn and delivered within which to present it for payment, and, as a general rule, it will be in due time if presented within the business hours of the bank on the next succeeding secular day, or if the holder is prevented from making presentment on that day by any impediment which in law will excuse the failure to make such presentment,.
If the check be not honored on presentment, due notice of the dishonor should be given to the drawer. If the holder use due diligence in making presentment and giving notice of non-payment, the solvency of the bank on which the check is drawn is in the meantime at the risk of the drawer: if, however, the holder fail, without valid excuse, to make demand of payment-at the proper time, after such default he assumes the risk of the solvency of the bank, and should the bank afterwards suspend business or become insolvent, the loss occasioned thereby will be the loss of the holder.
The foregoing rules, applicable to checks given as ■conditional payment, I regard as sustained by the authorities.
While, however, the giving of a check by a debtor to his creditor is generally presumed to be only a pro
I do not find this proposition controverted anywhere except in New York, where it seems to be held that such an agreement is invalid because without eonsidertion. The authorities in all the other states seem to uphold such an agreement when made. In some of the cases it is said the agreement must be “ express;” in others that it must be “special;” while in many others it is said that it may be either “ express or implied.” The authorities touching such agreement are collated and classified in 2 Parsons on Bills and Hotes 159, 160, 161, 162, note (t), and as there given relate mostly to bills of exchange and promissory notes. I see no good reason, however, why the rule should not apply as well to a cheek as to a bill or note, nor why the agreement may not as well be implied as express.
To make the agreement however valid, whether it be express or implied, it must, of course, be bona fide ; and hence, to warrant the conclusion of law propounded in the instruction, it was not only necessary that the check should have been given and received in full payment of the account sued upon, but it must have been drawn against sufficient funds; and if the check was so given and received, and there was such sufficient funds to meet it, which would have been applied to its payment if presented on the day it was given, was not the debt sued upon extinguished by the check, and were the plantifis entitled to any recovery in the action ?
As before stated, the declaration contained only the-common counts. There was no count on the check. It is true, that although there was no special count on
The only count in the declaration to which the evidence applied was the count for goods sold and delivered, under which the account, as a bill of particulars, was filed; and if the goods (the tobacco) were paid for absolutely by the check, then “the demand upon the account sued upon” was thereby extinguished, and there was no count in the declaration upon which the plaintiffs could recover. Sheehy v. Mandeville & Jameson, 6 Cranch’s R. 253; Slocumb’s adm’r v. Holmes’ adm’r, 1 Howard (Miss.) R. 139.
Whether under the evidence the action could have been maintained on the check, if it had been specially declared upon, it is not necessary in this case to decide.
I find no error in the instruction given to the jury.
Did the court err in overruling the motion of the plaintiffs for a new trial ?
I regard the certificate of the judge in this ease as a certificate of the facts proved on the trial, and not a certificate of the evidence, and this is the more favorable view for the plaintiffs. The judge certifies as facts proved, that the defendant gave his check to the plaintiffs for the amount of his indebtedness for the tobacco sold, and that the check was received by the
I cannot say that the evidence in this ease was insufficient to warrant the verdict; certainly, as it appears to me, it was not plainly insufficient.
If there had been no evidence tending to shew a satisfaction of the debt sued upon by the check given and received, it is still not very clear that the plaintiffs were not guilty of laches by which loss was sustained by the defendant. But, with my views of the ease already expressed, it is not necessary to proceed further in our inquiries.
Moncure, P., and Anderson, J., concurred in the opinion of Burks, J.
Christian and Staples, Js., dissented.
Judgment arrirmed.