214 N.W. 275 | N.D. | 1927
This action is controlled by the decision in the case of Berg v. Federal Reserve Bank, ante, 406, 52 A.L.R. 988,
It is clear from the evidence in this case that, if the plaintiff had demanded payment at the time he presented the checks at the bank, he would have been paid. It is conceded that the defendant had money in the bank to pay the checks and that the bank was paying all checks at the time. But the plaintiff did not want the money; he wanted credit for the amount of the checks in his regular account at the bank, and it was at his own request that the checks were received by the bank for credit and a deposit slip given to him.
In the case of Berg v. Federal Reserve Bank, supra, this court held that the maker of a check engages that on due presentation of the check at the bank the check will be accepted and paid according to its tenor and that, if dishonored and the necessary proceedings on dishonor be duly taken, he will pay the amount to the holder or to any subsequent indorser who might be compelled to pay it. (Citing Comp. Laws 1913, § 6946; Neg. Inst. Law, § 61.) "If the holder, instead of receiving money, causes the check to be deposited to the credit of his account in the drawee bank, the check is paid and the drawer released from liability thereon." — Citing Burton v. United States,
It is clear from the evidence that what was done at the bank was done at the request of the plaintiff, and the order of the lower court must be reversed and judgment entered for the defendant. It is so ordered.
BIRDZELL, Ch. J., and NUESSLE, BURKE, BURR and CHRISTIANSON, JJ., concur. *471