37 Neb. 500 | Neb. | 1893
On Saturday, the 31st day of May, 1890, about 4 o’clock in the afternoon, Abraham L. Miller indorsed in blank and deposited to his credit in the First National Bank of Wymore two checks, drawn by A. W. Beahm to Miller’s order, on the .State Bank of Cortland, Nebraska. These checks aggregated $3,429.25.
The town of Cortland is twenty-seven miles distant from Wymore, the two being connected by telephone, telegraph, and railroad lines, and two daily mails. The mails for Cortland closed at Wymore, at that time, at 6 and 8 o’clock respectively in the afternoon of each day. The first mail would reach Cortland at 9 o’clock P. M. of the same day, and the second at 10 o’clock the next day.
The plaintiff in error made no inquiry of the Cortland bank as to whether the Beahm checks were good, nor did it notify the Cortland bank that it held such checks. On the same day that the checks were received by it, the
The plaintiff in error filed an answer and counter-claim, in and by which it alleges the deposit by Miller in its bank of the Beahm checks; that it forwarded said checks in a reasonable time to the State Bank of Cortland, on which they were drawn, but that the checks were worthless and payment was refused for the reason that Beahm had no funds in the Cortland bank with which to pay the same, and that the checks were duly protested; and that on the
The case was tried to the court, a jury being waived. The court found for the defendant in error, Miller, and rendered judgment against the plaintiff in error for the sum of $956.96, the difference between the Beahm checks and the total of the checks which Miller had drawn on the bank after their deposits, and which the bank had paid.
The bank brings the case here for review, the error alleged being that the findings and judgment of the court below were contrary to the law and evidence.
After a careful and patient examination of this record, we have ho doubt that the Beahm checks were received by the plaintiff in error as cash, and that they were not received by the plaintiff in error for collection for Miller. This proposition is abundantly supported by the facts and the evidence throughout the entire case. These checks were payable to Miller’s order, and by him indorsed and delivered to the plaintiff in error, which gave Miller credit for the amount of them and allowed him to check against them. After these checks were deposited in plaintiff in error by Miller, the relation subsisting between the bank and Miller was, first, that of depositor and depositee, and second, that of indorser and indorsee.
The plaintiff in error contends, conceding the checks were not presented for payment within a reasonable time, that Miller was not prejudiced' by the delay. We do not assent to this as a conclusion of fact. The evidence is: Had plaintiff in error, on the date it received the checks, advised the Cortland bank of the fact, that bank would have paid the checks in full. At the opening of business on Monday, June 2, Beahm had on deposit in the Cort
Tiedeman, Commercial Paper, sec. 442, after stating that the drawer of a check would not be discharged by the failure to present it for payment within a reasonable time, unless the drawer was prejudiced thereby, continues: “ The rule is different with regard to indorsers. They are discharged whether they have suffered any damage or not from the failure to make due'presentment and give the notice of dishonor within a reasonable time.”
In Northwestern Coal Co. v. Bowman & Co., 69 Ia., 150, that court say, after deciding that the plaintiff had held the check in question an unreasonable time before presenting it, and that it could not recover against indorsers: “The fact that the drawer had no funds in the hands of the drawee when the check was drawn makes no difference.”
■ In Gough v. Staats, 13 Wend., 549, the supreme court of New York say: “If there has not been due diligence in presenting the check for payment, the indorser is discharged, although he has not been prejudiced by the delay.”
We think these cases state the rule correctly, and that the question as to whether the indorser was damaged by the delay in presenting the Beahm checks for payment was
Now, it appeal’s from the evidence in this record that the plaintiff in er.ror was guilty of negligence at the time it received the Beahm checks in not inquiring of the Cort-Mnd bank as to whether they would be paid on presentation. It further appears that Cortland is only twenty-seven miles distant from Wymore, plaintiff in error’s place of business; that the checks could have been mailed by the plaintiff in error to the Cortland bank the same day they were received, and they would have reached the Cortland bank, at the furthest, on Monday at 10 o’clock in the forenoon. The plaintiff in error could have mailed the cheeks on Monday and they would have reached the Cortland bank on Tuesday at 10 o’clock A. M. Instead of this the plaintiff in error chose to mail these checks to St. Joseph, Missouri, and they go around by way of Omaha and then back to Cortland. ' It is also in evidence in this record, from the mouths of experienced bankers, that due diligence in the presentment of these Beahm checks to the Cortland bank required that the plaintiff in error should send them by the first mail to the Cortland bank, and the evidence does not establish the contention of the plaintiff in error that these checks were presented for collection to the Cortland bank under any custom of bankers. And if it did, we do not think that bankers, by any custom, can evade their legal duties. We think, therefore,, that the plaintiff in error did not use such diligeuce in the presentment of these Beahm cheeks for payment as to hold the indorser, Miller, thereon.
In Mohawk Bank v. Broderick, 10 Wend., 304, the supreme court of New York say: “A check on a bank for the payment of money, to charge an indorser, must be presented with all dispatch and diligence consistent with the transaction of other commercial concerns, and it was accordingly held, where a check was received in Schenectady on the 14th of January, drawn on a bank in Albany, á distance of sixteen miles from the former place, and between which places there is a daily mail, and not presented until the 6th of February, that laches was imputable to the holder, and that the indorser was discharged. * * Although it is said that checks are like inland bills of exchange and are to be governed by the same principles, greater diligence is required in presenting them than in presenting bills of exchange.” This case was affirmed by the court for the correction of errors in 13 Wend. [N. Y.], 133. See to the same effect Northwestern Coal Co. v. Bowman, 69 Ia., 150.
We do not mean to lay down any rule by which the indorsee of a check must present the same for payment in any given'time in order to hold the indorser. What we do decide, however, is, in this case, that the Beahm checks were not presented by the plaintiff in error within a reasonable time. In this case, Tuesday, June 3, would have been a reasonable time within which to present these checks.
The judgment of the district court is therefore in all things
Affirmed.