| Iowa | Jun 15, 1870
It is not material in this case to inquire whether the drawer of this check was discharged by reason of delay of presenting the same for payment. The real inquiry is, whether the court or jury might not, under the circumstances, conclude that plaintiff took it subject to the equities or defenses existing in favor of the drawer against the payee.
The rule is recognized, that this check was not due until presented to the bank, and demand of payment there made. This is certainly so, as to the right of action against the drawer, the meaning of the statute of limitations, and the like. We here keep out of view cases of fraud in drawing the check, or entire want of funds, and full and clear knowledge that there were and would be none.
And while, for most purposes, the drawer of such an instrument before demand is in a like position with the maker of negotiable paper before due, it is nevertheless proper, in measuring the rights and liabilities of parties,
Kemembering these propositions, let us look at the facts in this case. Plaintiffs purchased this check five months after it was drawn. It was drawn upon a bank hundreds of miles away, and by a 'party doing business with' plaintiff, who resided in the same place, within a few doors, and yet of whom no inquiries whatever were made. The drawer and payee both resided in the place where the check was drawn, and where the drawee transacted business, and where it was to be paid, and left for their new homes and there settled, months before this negotiation. Plaintiff had undertaken to explain the delay in presenting the check for payment, by proving a request from the drawer to the payee not to apply for the money until it was needed.
Upon these facts, in this state of the record, the testimony offered was admissible upon two grounds: 1. To rebut the case made by plaintiff, showing excuse for delay in making presentment. Due diligence was necessary to charge the drawer, and what amounts to such diligence must be determined from the circumstances of each case. 2. Though before such presentment a check would not, technically, be due (as heretofore explained), yet a party may take it under such circumstances as that it must be legitimately treated as a stale . demand, he acquiring no higher title than that of the payee, and subject to like equities. If thus stale, the defense of payment would ■certainly be good, for nothing could more necessarily control, qualify or extinguish the right to recover thereon. The defense attaches to the instrument itself, and in no legal sense arises out of other and independent transactions between the parties.
Affirmed.