168 N.W. 1054 | S.D. | 1918
This case is before us upon rehearing; our former opinion being found in First National Bank v. Brule National Bank, 38 S. D. 396, 161 N. W. 616. Reference is made to such opinion for a statement of the material facts. We would, however, call attention to the further facts not noted' in such opinion: The -defendant indorsed the check, “Brule National Bank Paid — Sept. 9, 1913, Chamberlain, S-. D.”; while, -as a matter-of fact, it did not make payment to the drawer of said check until after plaintiff bad paid the -check.
What are the 'questions in this -case? They are few and simple. (1) Does the Uniform Act (chapter 279, Laws 1913) declare the rule governing where a drawee has paid- -a forged bill o-r check? (2) -If the Uniform- Act -does not 1-ay down the rale, then should we' ado'p-t -either the absolute estoppel rule, -which some courts claim was announced in Price v. Neal, 3 Burr. 1354, -or the modified estop-pel rule actually announced in Price v. Neal, or 'shall we repudiate entirely the idea of estoppel -and adopt the- rule -an
There is no section of the Uniform Act that 'directly and expressly declares the effect of payment by the drawee of a forged bill or check; but there is a line of decisions (Nat. Bk. of Commerce v. Mechanics’ Am. Nat. Bk., 148 Mo. App. 1, 127 S. W. 429; Cherokee Nat. Bk. v. Union Trust Co., 33 Okl. 342, 125 Pac. 464; First Nat. Bk. v. Bk. of Cottage Grove, 59 Or. 388, 117 Pac. 293; other cases in note L. R. A. 1915A, 78, 79; and Daniel1 on Neg. Inst. § 1657, at page 1868) holding that, inasmuch as payment is greater than acceptance or certification, the greater must be held to include the lesser, and that therefore sections 62 and 185 of our Uniform Act are applicable, and estop the drawee of a check, who has paid same, exactly and1 under the same circumstances as they would estop a drawee from1 disputing a check after he had certified same. These sections read:
“Sec. 185. Where a check is certified' by the .bank on which it is drawn, the certification is equivalent to an acceptance.”
“Sec. 62. The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance anid admits: :
“1. The existence of the drawer, the genuineness of his signature, and his> capacity and authority to draw the instrument; and
“2. The existence of the payee and his then capacity to indorse.”
That all the incidents pertaining to acceptance or certification also pertain to payment is not true. This was recognized in Price v. Neal. In that case the drawee, Price, was seeking to recover of Neal the amount he had paid Neil on two (bills. Neal became the holder of one bill after it had been accepted iby Price, while the other bill was paid without prior acceptance. Lord Mansfield very properly said:
“But the plaintiff’s case is much stronger upon the other bill, which was not acceipted. It is not stated ‘that that bill was accepted before it Was negotiated; on' the contrary, the consideration for it was paid! by the defendant, before the plaintiff had seen it. So that the defendant took it upon 'the credit of the indorsers, not upon the credit of the plaintiff.”
For the reasons above stated, the result reached in our former opinion is affirmed.