Lindsey v. McClelland

18 Wis. 481 | Wis. | 1864

By the Court,

Cole, J.

The circuit court was most unquestionably right in holding that the law relating to bills of exchange and commercial paper on the question of diligence, did not apply to the certificate of deposit produced on the trial and read in evidence. That certificate was, by its very terms, made payable “in current funds" which this court held, in Ford v. Mitchell, 15 Wis., 304, rendered the instrument nonnegotiable. It is not payable in money, or what the court is bound to consider as equivalent to money. See authorities cited in Ford v. Mitchell; Edwards on Bills and Promis. Notes, p. 134, et seq. Even if the certificate had been negotiable, it may be questionable whether the indorsee was guilty of laches in holding it five days before he presented it for payment. The prevailing opinion seems to be, that such an instrument? when payable in money, possesses all the requisites of a negotiable promissory note (Miller v. Austen, 13 How. (U. S.), 218; Bank of Orleans v. Merrill, 2 Hill, 295; Kilgore v. Bulkley, 14 Conn., 362; Laughlin v. Marshall, 19 Ill., 390; The Bank of Peru v. Farnsworth, 18 Ill., 563, and authorities cited in those cases) ; and therefore it would be sufficient if the demand of payment be made within a reasonable time. This certificate of deposit bore date the 20th of June, and it was presented for payment on the 26th of the same month. Now there is much reasonfor saying that in an instrument of that nature neither the parties to it nor the indorser contemplates an immediate demand for the payment, and hence the holder may not be responsible for the use of the same degree of diligence as the law requires in other cases. Eor there would seem to be no object in depositing money in a bank with the intention of immediately drawing it out. And therefore we think there was no want of diligence in presenting this certificate to the bank for payment. The circuit court instructed the jury that the plaintiff was entitled to recover unless they found from the evidence that he had expressly agreed to take the certificate of deposit in payment of his debt. . This' instruction is in accordance with well established principles. The evidence in the case is most clear and satisfactory on the point that the certificate was not taken in payment of the pre-existing indebtedness. At all events the jury were properly instructed upon the law applicable to that defense.

We see no error in the record which would warrant a reversal of the judgment.

The judgment of the circuit court is affirmed.