135 Iowa 605 | Iowa | 1907
The plaintiff and defendant are banks doing business at Pleasantville, Iowa. At Sandyville, about
On Saturday, September 24, there was a conversation over the telephone between plaintiff’s cashier at Pleasant-ville and the cashier of the Farmers’ Bank at Sandyville. In the course of this talk, plaintiff’s cashier informed Heiney,
If you find that the check in suit was remitted for payment by the plaintiff direct to the Farmers’ Bank, the drawee, at Sandyville, and that thereafter prior to its actual receipt through the mails by the drawee, and at a time when said check should in the ordinary course of mail have been received by the drawee, the said Farmers’ Bank, with full knowledge of the date and amount of said check, the name of its maker and drawee, and that the same had been forwarded to it for payment,' then positively and unconditionally refused payment of said check, and so notified the plaintiff, then no further presentment for payment to the said drawee was necessary, and it then became the duty of the plaintiff to give notice to the defendant of the dishonor of said check for nonpayment within the time and as explained in these instructions. Failure of the plaintiff to so notify the defendant would discharge it from liability on its indorsement. 'If, however, you find that the refusal, if any, to pay said check prior to its actual receipt through the mails was conditional upon the said Essex having funds to his credit with the drawee bank upon receipt of said check sufficient to pay the same, then plaintiff need not have given notice of dishonor until after said check was actually received and payment refused.
The rule thus stated was in our view sufficiently favorable to the defendant, and under it the jury appear to have found that there was in fact no demand or refusal of payment in the conversation to which -we have referred. Indeed, under the testimony, no other finding could be upheld. The substance of the interview, fairly interpreted, amounted to this: Plaintiff’s cashier informed the cashier at Sandy-ville that the check was then en route by mail, and inquired whether it would be honored on its arrival. He was informed that if, on its presentation, Essex had sufficient balance to his credit, payment would be made; otherwise it would be refused. Under these circumstances, we think there was nothing for the plaintiff to do except to wait for
Other exceptions argued by counsel are governed by the conclusions we have already announced and need not he further considered.
There is no reversible error in the record, and the judgment of the trial court is affirmed.