103 Ala. 458 | Ala. | 1893
So strong is this presumption of a check being drawn against an existing deposit, that when one is presented and paid, it has been held, not to be evidence of money lent or advanced by the banker to the customer, but, on the contrary, it is prima facie evidence of the repayment to the customer by the banker, to the amount of the check, of money previously deposited by him in the banker’s hands. — Lancaster Bank v. Woodward, 57 Amer. Dec. 620; Fletcher v. Manning, 12 Mee. & W. 571.
And the drawer is not discharged by the laches of the holder in not making due presentment of the check, or in not giving due notice of its dishonor, unless he has suffered some loss or injury thereby as by the intermediate failure of the bank, and then, only pro tanto. — 3 Amer. & Eng. Encyc. of Law, 215, and authorities cited; Morse on Bank & Banking, 421 d; 2 Daniel on Neg. Instr., § 1587; Boone on Banking, supra.
The bank, says Judge Story, “is not bound to pay unless it is in full funds; and it is not obliged to pay, or to accept to pay, if it has partial funds only; for it is entitled to the possession of the check on payment; and, indeed, in the ordinary course of business, the only voucher of the bank for any payment is the production and receipt of the check, which the holder can not safely part with, unless lie receives full payment, nor the bank
As to overdrafts, Mr. Morse says, there is power in the bank to allow them; that a customer, by negotiating with the authoi'ized and proper officials, may make a legal and binding agreement by which his overdrafts to a certain amount named, and under the circumstances agreed upon, shall'be honored; that such a dealing is in the nature of a loan, and is placing money at his disposal or control. — 1 Morse on Banks & Banking, § 368..
In the case of Smith v. Miller, supra, the court of appeals in New York hold, that when a check is taken instead of money by one acting for others, a delay of presentment for a day, or for any time beyond that within which, with proper and reasonable diligence, it can be presented, is at the peril of the party thus retaining the check and postponing presentment. This, says Mr. Daniel, seems to be the correct doctrine, for the agent exceeds authority in taking the check, and therefore acts at his peril. — 2 Daniel on Neg. Instr., § 1625; 2 Morse on Bank & Banking, § 421.
The plaintiff examined the defendant as a witness, who testified, that he drew and delivered the check about 10 o’clock of the day it bears date, and when he handed it to Mr. Nelson, he asked him to take it to the Florence National Bank and get his money; that the bank was located in the town of Florence, and. he and Nelson both resided there at the time the check was given ; that said bank was located almost opposite to the witness’s office across the street; that at the time of the suspension of said bank, there appeared, by the books of the bank, to his credit, out of moneys deposited by him in the bank, and not drawn out by check, the sum of $154.64; that in addition thereto, the bank was indebted to him at the time, in the sum of $75, for legal services rendered by him to the bank, and was also indebted to him in the sum of $60, due by check drawn in his favor by a depositor of said bank, on the 10th June, 1891; that he proved his claims against the bank, after its suspension, before the receiver, and in the account, he charged the bank, with the sum of $154.64, due him on deposit account, with the amount due him for legal services, and the unpaid check for $60; and gave it credit for the $229, being for the check given to said Nelson, and $25, which had been paid to him .on account of services rendered, and there remained due to him, the sum of $60.64 for which he holds a receiver’s certificate, and this sum, besides the other amounts specified, the bank owed him, at the time he gave said check to Nelson ; that at that time, his account with said bank, as stated, was unsettled, and what it owed him for services and for the unpi’esented check, had not appeared on its books, and a
It thus appears that there was an unsettled account between the defendant and the bank, at the date of the giving of said check ; that the bank, at that time, did owe him an amount greater than a sum sufficient to pay said check; that he did not draw the same without knowing he had funds in the bank with which to pay it, but had the assurance of the cashier of the bank that his check would be paid, and, therefore, the most reasonable exr pectation that it would be paid. He acted with commendable caution in reference to the matter, that he might do neither the payee nor the bank any injury, and Mr. Nelson had every reason to believe that the check was good and would be paid, for the defendant did what is not usual when one gives another a check on the bank — requested him to take it to the bank and get his money; and this is just what he ought to have doné, and failing, took all the peril of a failure of the bank, before the presentment of the check. Can any one doubt, if Mr. Nelson had gone to the bank, the day he received this check, or the following day, he would have been paid by the bank? He, himself, had every reason to believe it, and had no suspicions, even, to the contrary) for he received a check which acknowledged payment of, the notes'he had in-hand for collection. -He must', therefore — and so must his client, the appellant, so far as appellee is Concerned —suffer the consequences of, a disobedience of defendant’s request to present the, check, and
We fail to see that the $74.36 has any thing to do with the case, or that there was any pro tatito or other damage to defendant, less than the whole amount of the check, growing out of the holder’s failure to present it.
The charges requested by plaintiff, as applicable to the evidence, were properly refused, and the general charge in favor of the defendant was properly given.
Affirmed.