Kinyon v. Stanton

44 Wis. 479 | Wis. | 1878

RtaN, C. J.

Doubtless the respondent was guilty of negligence in holding the check of the appellants so long without presenting it to the bank for payment. And if the appellants had left funds in the bank to meet it, until the failure of the bank, the negligence of the respondent would have discharged the appellants from all liability over. Jones v. Heiliger, 36 Wis., 149.

But the appellants saw fit to draw out their entire account in the bank before its failure; and, doing so, must be held in good faith to have intended, as they are liable, themselves to protect the check which they had given to the respondent. And so the negligence of the respondent did not prejudice the appellants. This view is not affected by the fact that the bank would probably have paid the check, without regard to the state of the appellants’ account, at any time before the day of the bank’s failure. On that day, the bank apparently would not have honored the cheek without funds of the appellants sufficient to meet it. If, at any time, the bank had paid the cheek without funds of the appellants, they would have been liable to the bank for the amount advanced to pay it. It was immaterial to them whether they should owe the amount to the bank or to the respondent. Certain it is that they must owe it to one or the other. And they elected to owe it to the respondent. As between the parties here, the appellants could have escaped liability over, only by leaving funds in the bank to meet the check from the day it was given until the failure of the bank. They cannot expect to draw all their funds from the bank before its failure, and then escape liability upon a check previously given, merely because the bank failed.

It makes no difference in the relations of the parties, that the assignee of the bank in bankruptcy afterwards recovered against the appellants the balance which they drew out in favor of themselves on the day of the failure, and in view of it. That recovery went upon what the federal court must have held a fraud upon the bankrupt law. The state law gave them perfect right to do as they did. And the recovery in the federal court, even if the amount had been sufficient to pay the check, leaves the fact untouched that the appellants had in fact withdrawn all their funds from the bank, leaving nothing to meet the check which they had given to the respondent.

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

Taylor, J., took no part.