285 P. 181 | Mont. | 1930
There is no question from the testimony but that the plaintiff received the check in question on September 29 and held this check until October 2, a period of four days, and did not mail it to Winifred or do anything else with it, nor did he send it to the American Express Company's office at Winifred for collection, but on the second day of October, 1925, four days after he received the check, mailed it to the bank at Lewistown, in an opposite direction from Winifred, a distance of about forty-five miles, and under the general rule covering *75
negotiable instruments the plaintiff was grossly negligent in delivering the check and presenting the same. (2 Daniel on Negotiable Instruments, sec. 1592; Lewis Hubbard Co. v.Montgomery Supply Co.,
Further, it is the contention of the appellant that he was discharged on the check by reason of the failure of the respondent, or his agent, the Winifred bank, to give notice of the dishonor of the check after the presentment thereof had been made.
Sections 6108 and 6109, Revised Codes of 1921, are held by this court and the supreme court of the United States to be statutes adopting the so-called Massachusetts Rule with regard to the transmitting of checks for collection. (Jensen v. LaurelMeat Co.,
The Negotiable Instrument Law requires notice of dishonor to be given to the drawer of a check. (8 C.J. 636; Bacigalupo v.Parrilli, 112 N.Y. Supp. 1040; Cassel v. Regierer, 114 N.Y. Supp. 601.) It became the duty of the Winifred bank, which was the agent of the respondent, either to give notice to the drawer of the check or to give notice to its principal, the respondent. Section 8501 of the Revised Codes of 1921 provides that "where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal, upon receipt of such notice, has himself the same time for giving notice as if the agent had been an independent holder." However, no notice was given to the drawer of this check under the admitted facts in this case until after the fourteenth day of October, 1925. The time within which notice of dishonor must be given is provided by sections 8510 and 8511, Id. It will be observed upon an examination of these statutes that the notice if given was long after the expiration of the time allowed by law. Therefore the drawer of the check, the defendant in this case, was discharged from all liability to pay the check.
We are unable to see any distinguishing facts between the case of Blackwelder v. Fergus Motor Co.,
The only question presented by the appeal is whether the evidence is sufficient to support the judgment.
The record shows that plaintiff is a merchant residing at Christina, in Fergus county, which is about fifteen miles south of Winifred and twenty-five miles north of Lewistown. At the time in question here he was also postmaster at Christina. Defendant at the time of the transaction here involved was engaged in buying cattle in the vicinity of Winifred and received his mail at Christina. Christina is located on a branch line of the Milwaukee Railroad, extending from Lewistown to Winifred, and has no banking facilities. At the times in question here there was train service between Lewistown and Winifred on Mondays, Wednesdays and Fridays of each week, the train leaving Lewistown at 9 o'clock in the morning, arriving at Winifred at 1 o'clock in the afternoon and returning to Lewistown on the same day. On Tuesdays, Thursdays and Saturdays of each week a stage carrying first-class mail left Winifred at 9 o'clock in the morning, arriving in Lewistown about noon and leaving at 3 P.M. for Winifred. The American Express Company maintained an office in Winifred for the transaction of business in September and October, 1925, and as a part of its business for compensation presented checks for collection upon the bank in Winifred. The check *78 in question was issued on September 29, 1925. Plaintiff received it from Gossett on October 2 and on the same day mailed it to the National Bank of Lewistown where he did his banking business, and requested the bank to send him the money by registered mail. This the bank did, and the money was turned over to Gossett. The Lewistown bank received the check and mailed it to the Winifred bank for payment on October 2. The check left Lewistown on the stage on Saturday, October 3, and arrived at the Winifred bank the same day about 4 o'clock in the afternoon.
It appears that, had the Winifred bank returned the check unpaid at the close of business on Monday, October 5, it would have reached the Lewistown bank on October 6 and in due course would have reached plaintiff at Christina on October 7. The Winifred bank closed its doors at the close of business on October 10. The check in question was not paid by the Winifred bank. Between September 29 and October 6, inclusive, the Winifred bank paid all checks drawn on it and presented over the counter in person, but plaintiff had no knowledge of that fact at the time. Between September 29 and October 6, inclusive, the Winifred bank had in its vaults sufficient money to pay the check in question, and defendant had on deposit in the Winifred bank to his credit between September 29 and October 10 sufficient money to pay the check.
At the time in question it was customary for the Lewistown bank to collect items drawn on outside banks in Fergus county, and present them for collection and payment, by mail to the bank upon which they were drawn. Plaintiff received the check from Gossett after the train had gone to Winifred on October 2. On October 6 or 7 plaintiff first learned that the check had not cleared, by receiving a letter from the cashier of the Lewistown bank. After learning that the check had not cleared, plaintiff made inquiries to ascertain the whereabouts of defendant and learned that he was going from place to place in the Winifred country buying cattle and was unable *79 to locate him. Defendant at no time between October 2 and October 14 called for his mail at Christina. On October 15 plaintiff saw defendant at the former's place of business and informed him that the check had not cleared. The Lewistown bank, upon returning the check, charged plaintiff's account with the amount of the check.
There is a conflict in the record regarding some of the[1] foregoing facts, but the facts in conflict have been resolved by the trial court in favor of plaintiff, and our province is but to determine whether there is any substantial evidence to support the judgment, and we must accept that as true which plaintiff's evidence tends to prove, even though it is contradicted. (Matthis v. Campbell,
Counsel for plaintiff contend that, since there is evidence that plaintiff received the check on October 2, and since the court found in his favor, we must accept that fact as established even though it is contradicted by evidence offered by the defendant that plaintiff actually received it on September 29, the date it was issued. Conceding plaintiff's contention in this respect, it does not solve the problem here presented.
By section 8593, Revised Codes of 1921, "a check must be[2] presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay." Here the action is against the drawer, and as to him the requirement of the statute is that the check must have been presented within a reasonable time after its issue. The rule is that transfers of a check to successive indorsees do not extend the time within which it must be presented so far as the drawer is concerned. (Daniel on Negotiable Instruments, 6th ed., sec. 1595; 8 C.J. 544; 5 R.C.L. 507; Gordon v. Levine,
Under section 8478, Revised Codes of 1921, presentment of a bill of exchange is sufficient "if made within a reasonable time after the last negotiation thereof." And the fact that under section 8592 it is provided that "except as herein otherwise provided, the provisions of this Act applicable to a bill of[3] exchange payable on demand apply to a check" does not alter the rule that so far as the drawer of a check is concerned it must be presented within a reasonable time after its issue, regardless of the time of the last negotiation thereof. (8 C.J. 544, note 62.) But conceding that the check was not presented within a reasonable time after its issue, it does not necessarily follow that the drawer has been discharged from liability thereon, for under section 8593 he is only discharged "to the extent of the loss caused by the delay."
Plaintiff had the right to present the check in the manner here shown (Jensen v. Laurel Meat Co.,
Defendant asserts also that the check was paid and defendant's obligation thereon discharged by reason of the fact that the[4] Winifred bank held it more than twenty-four hours after presentment and for that reason is deemed to have accepted it. The cases of Clarke v. National Bank of Montana,
The evidence shows that the Winifred bank received the check at 4 P.M. on Saturday, October 3. The record does not show when the check was returned to the Lewistown bank. The evidence shows that plaintiff received a letter from the cashier of the Lewistown bank on October 6 or 7, informing him that the check had not cleared, and on October 14 he received the check. So far as appears from the record, the Winifred bank may have returned the check to the Lewistown bank within twenty-four hours after its presentation. Since the defendant had the burden of proving that the check was paid and his obligation discharged, and since the record does not show that the check was retained by the Winifred bank for more than twenty-four hours, his contention on this phase of the case must fail.
It is contended by defendant that the check was not accepted[5] by the Winifred bank upon presentation, but was by it dishonored, and that plaintiff failed to give notice of dishonor as required by section 8496, Revised Codes of 1921, and within the time provided in sections 8510 and 8511. Regarding this contention the general rule is that unless the drawer of the check has sustained loss or damage by reason of the delay in giving notice of dishonor or nonpayment, such delay is of no consequence. (5 R.C.L. 516, note 1; Holmes v. Briggs,
The evidence shows that even if plaintiff had presented the[6] check for payment sooner, or if it had been presented the day after its issue, notice of dishonor could not have been given to defendant before October 7, for, according to his own evidence, he was on the road to Sioux City, Iowa, and return, between September 29 and October 7, with a shipment of cattle. Plaintiff made inquiries to locate the defendant after he learned that the check had not cleared on October 6 or 7, but was unable to do so until about October 15. These circumstances were sufficient to warrant a finding excusing the giving of notice of dishonor sooner. (8 C.J. 684, 685.)
There is substantial evidence supporting the judgment, and it is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, GALEN and FORD concur. *83