| Ill. | May 15, 1886
delivered the opinion of the Court:
Assuming, first, that appellant is not chargeable with knowledge of the existence of any other bank than that of Bice & Messmore, at Cadillac, Michigan, and second, that all the information it had, or could reasonably obtain at the time, in respect to the financial standing of Bice & Messmore, was, that they were solvent,—were Bice & Messmore suitable agents tti whom to transmit the certified check for collection after it was placed by appellee in appellant’s possession? We do not think it is of much consequence whether appellant took the check as a payment, on account, or for the purpose, merely, of collection, for in either view it is entitled to show that the check, if the bank has discharged its duty by an effort to collect it, has availed nothing. Nor do we regard the evidence that certain banks in Chicago were in the habit of transmitting checks drawn on other banks, to those banks for collection, as affecting the present question. That evidence hardly comes up to the requirement of this court in regard to proof of a common law custom, as laid down in Turner v. Dawson, 50 Ill. 85" date_filed="1869-01-15" court="Ill." case_name="Turner v. Dawson">50 Ill. 85, and subsequent decisions of like import; but if it did, that custom does not include cases in which certified checks are sent for collection to the banks by which they are certified. In the cases to which the evidence relates, there is no primary liability on the part of the bank to which the check is sent, but in the case of a certified check, the bank is primarily liable for its payment. So far as affects the present question its position is precisely what it is where it makes its promissory note, bond or other evidence of original indebtedness. .(Bickford v. First National Bank, 42 Ill. 242, et seq.) The same person can not be both debtor and creditor at the same time and in respect of the same debt. How, then, can he who is debtor, be, at the same time and in respect of the same debt, the disinterested agent of the creditor? Can it .be said to be reasonable care in selecting an agent, to select one known to be interested against the principal?—to place the principal entirely in the hands of his adversary ? The interest of the creditor, when his debtor is failing, is that steps be taken promptly and prosecuted with vigor to collect his debt. But at such a time the inclination of the creditor quite often, and it may be sometimes his interest, too, is to procrastinate. The debtor may often be interested in bringing about a compromise with his creditors, whereby his debt may be discharged for less than its face; but the creditor whose debt can all be collected by legal proceedings can never be interested in producing that result. Surely it could not be held reasonable care and diligence in an. agent holding for collection the promissory note given by one individual to another individual, to send the promissory note to the maker, trusting to him to make payment, delay it, or destroy the evidences of indebtedness and repudiate the transaction, as his conscience might permit. If this would not be held to be reasonable care and diligence, why should the same conduct be held to be reasonable care and diligence when applied to a bank ?
It is to be borne in mind appellant was not compelled to accept this check for collection. It assumed the burden voluntarily, and it ought to have known that the certified check was not delivered to it merely to have it exchanged for the draft of Bice & Messmore on some othér bank, for if this had been desired, it ought to have known that appellee would have obtained such a draft instead of the certified check. If appellant had no correspondent or agent at Cadillac through whom to make collection, it should have so informed appellee, and then acted on the directions of appellee. This would have imposed no hardship, and would have protected all. It is true that when appellee placed the check in the hands, of appellant, it was to he presumed that it was intended that appellant should collect by the ordinary and usual mode of collecting in such cases, but neither from facts proved nor as a matter of law was it to be inferred that the check was to be surrendered to Bice & Messmore, to use their pleasure as to the time and manner of payment and the disposition of the check. If appellant was willing to take the check without special stipulations, appellee was authorized to assume therefrom that it was able to collect, and that it had a proper agent through whom to do it promptly. 1
Indig v. City Bank, 80 N. Y. 396, cited by counsel for appellant, is entirely different in its material facts from those in the present case, as we conceive. There, the bank owed no primary duty to pay. The note was sent to it for collect ti'on, not from itself, but from the maker of the note. Its liability was solely that of an agent for collection. In the recent case of Merchants’ National Bank v. Goodman, the Supreme Court of Pennsylvania, however, lay down the rule directly the opposite of that laid down by the New York Court of Appeals in Indig v. City Bank. The suit there involved the question whether the bank on which a check was drawn, was a suitable agent to which to transmit the check for collection, and the court held that it was not. The court among other things said: “We think the principle may be stated as a true one, as the plaintiff’s counsel have presented it, that no firm, bank, corporation or individual can be deemed a suitable agent, in contemplation of law', to enforce, in behalf of another, a claim against itself. The only safe rule is to hold that an agent with w'hom a check, or bill is deposited for collection, must transmit it to a suitable agent, to demand payment in such manner that no loss can happen to any party, whether he is depositor and indorser, or the indorsee and holder. * * * We interpret the eases to which we have referred as establishing the rule of transmission to a suitable correspondent or agent, to mean that such suitable agent must, from the nature of the case, be some one other than the party who is to make the payment. By no other rule can the rights of indorsers be protected, if it is the interest of the party who is to make payment, to hinder, postpone or defeat payment. This imposes no hardship on the institution undertaking to transmit for collection, which can always protect itself by stipulating that special instructions by the depositor shall be given, which will save the col-» lecting bank from all risk or peril. ”
It is unnecessary to say that we concur in these views any further than they are applicable to the facts before us.
We find no cause to disturb the judgment below, and it is therefore affirmed.
Judgment affirmed.