13 Mo. App. 202 | Mo. Ct. App. | 1883
delivered the opinion of the court. •
The plaintiff, as administrator of the estate of Michael Yiedt, deceased, sues the International Bank for the amount of the decedent’s deposit with the defendant, remaining at the time of his death. The bank responds, admitting the deposit, but setting up in effect, that on May 3, 1882, Viedt, then alive, purchased some cattle of Metcalfe, Moore & Co., and gave them in payment a check against the deposit for $885.30; that Metcalfe, Moore & Co. had not presented this check when, on May 4, 1882, Viedt committed suicide. A controversy having arisen, the bank prays permission to pay the money into court, and that Metcalfe, Moore & Co. be required to interplead with the plaintiff for an adjudication of their respective claims. The proper orders are made accordingly, and, upon a hearing of the cause, judgment is given for the plaintiff. The only question for determination is, whether the death of Viedt operated a revocation of the check.
This question, like many others, requires for its solution a careful consideration of the parties between whom it arises. As between the bank and the holder of a check drawn upon it, there are many cases wherein the drawing of the check will not be regarded as an absolute appropriation of the fund, which the bank is bound to respect. The bank may fall back upon its relations with the drawer, and refuse to honor the check, because the drawer is its debtor. Before presentation, there is no privity between the bank and the holder, so that the bank may ignore him utterly, and pay out the money upon checks of later date, or upon demand of the depositor. Such is the effect of sundry decisions here cited for the plaintiff. But, as be
In the present controversy, the bank has surrendered all interest and avoided all liability, by the payment of the money into court. The contest is exclusively between the drawer, through his legal representative, and the payees or holders of the check. Certain rights, growing out of the drawer’s tacit engagement touching the presence of the fund, and his appropriation of it to the use of these holder, were vested in them by the delivery of the check. It remains to inquire if any reason exists why those rights have
Some authority is here cited for the position, that “ the death of the drawer before presentment of the check operates as an absolute revocation of the power of the bank to pay upon his check.” Morse on Banks, etc., 278. The judicial basis for this statement is the case of Tate v. Hilbert (2 Ves. Jr. 111). The comprehensive form of the statement is not at all sanctioned by the decision. The check in that case was a voluntary gift. The drawer died before it was presented for payment. The point made by the decision was, that there was no effectual donatio mortis causa. For this there were a number of good reasons, none of which could have the least application to a check given for value received. One was, that words of gift are not sufficient to transfer property without an act. “ Therefore, donatio mortis causa cannot be by mere parol.” The check and its delivery were in parol, only. They expressed no engagement or obligation of any sort, but only the donor’s willingness to give. There must have been an actual receipt of the money, in order to a consummation of the gift. No appropriation of the fund could be assumed, when there was no legal undertaking of the drawer, supported by a sufficient consideration that he had, or would have, “ sufficient funds in the bank to pay the check upon presentment.” All this is foreign to the case of a check given for value in a business transaction. There is, in the present case, no suggestion of donatio mortis causa, since it does not appear that anything was done in contemplation of death, or of survivorship in any supposed donee. The question must be settled by the tests of right, or of obligation, as known to commercial law.
If, as the authorities seem to agree, the drawing and delivery of a check, for value, implies an engagement on the part of the. drawer, that there shall be funds in the bank to meet it,— in other words, that the bank will pay it when