Gifford v. Hardell

88 Wis. 538 | Wis. | 1894

Pinney, J.

The same rules which exist in relation to the necessity of presentment and notice, in order to charge the indorser of bills of exchange in general, apply as well to an indorser of a check. A check on a bank is presumed to be drawn against deposited funds, and, unlike a bill of exchange, which need not be drawn on a deposit, is generally designed for immediate payment and not for circulation. For this reason it is of greater importance than in the case of a bill that a check shall be promptly presented and the drawer notified of nonpayment, so that he may speedily inquire into the cause of refusal and take prompt measures to secure his funds deposited in the bank. The indorsers of bills and of checks stand on the same footing in reference to the effect of delay or failure in making presentment or giving notice of nonpayment, and are absolutely and entirely discharged if presentment be- not made within a reasonable time; and this rule applies as between an indorser and indorsee, as in the present case.

It is plain from the facts that, if the bank at New Eich-mond had forwarded the checks direct to Milwaukee for collection, they would have been received, at the furthest, in time for presentation and payment on the 20th of July, and while the bank on which they were drawn was transacting its usual business; and it appears that it had ample funds of the drawer with which to have paid them. The period of reasonable time for presentation, as between the plaintiff and the defendant as indorser, undoubtedly began when the checks were delivered to the plaintiff’s father for him, at Dousman, Waukesha county, Wis., on the 17th of July. Daniel, Neg. Inst. §§ 1586, 1587, and cases in notes. The drawer of a check cannot rightfully withdraw his funds necessary for the payment of it upon proper presentation, and it would be unjust to hold that, however Iqng the holder might permit the fund to remain, it should be at the drawer’s risk. Hence, the check must be presented within a reasonable time or the indorser will be discharged, and the fund is at the risk of the holder if he permits the deposit to remain. No transfer, or series of transfers, can prolong the risk of the drawer or indorser beyond this period, though each party is allowed the same period as between himself and his immediate predecessor that the payee had as between himself and the drawer; for no transferee can stand on any better footing than his transferrer in respect to the time within which the check must be presented in order to render the drawer’s or previous indorser’s liability absolute in the event of the failure of the bank. Daniel, Neg. Inst. § 1595, and cases in-note.

The rule of diligence as between indorsee and indorser is the same as between payee and drawer. This requires, in general, that, where the payee receives the check from the drawer in a place distant from the place where the bank on which it is drawn is located, it will be sufficient for him to forward it by post to some person at the latter place on the next secular day after it is received, and then it will be sufficient for the person to whom it is thus forwarded to present it for payment on the day after it has reached him by due course of mail. When the defendant delivered the checks, properly indorsed, at Dousman, Wis., on the 17th of July, he had a right to assume and expect that the plaintiff or his father would present them for payment within a reasonable time, and they took the risk of making such presentment. Instead, they were sent several hundred miles to the northwest of Milwaukee, to New Richmond, and then back through Milwaukee to Chicago, and were then returned to Milwaukee for payment on the 21st, as before stated. It is clear that they were not presented for payment within a reasonable time after indorsement and delivery by the defendant, and the judgment of the county court was therefore correct. First Nat. Bank v. Miller, 37 Neb. 500, and cases cited.

By the Court.— The judgment of the county court is affirmed.