109 Ala. 326 | Ala. | 1895
This was an action on an account for goods sold and delivered, in which the appellants were plaintiffs and the appellee defendant. The trial was had before the court without the intervention of a jury, by consent of the parties, on issue joined on pleas of payment and set-off, and judgment rendered for the defendant, from which the appeal is taken.
There is no conflict in the material evidence. The plaintiffs were merchants, residing and doing business in the city of Memphis, and the defendant was a merchant, residing in the town of Tuscumbia, in this State. The account was due and payable on the 3rd day of June, 1893, amounting to $143.47, and on that day the defendant remitted to plaintiffs his check on the Tuscumbia Banking Company, a partnership doing business in Tuscumbia, payable to the order of plaintiffs, for the amount of the account, and to be applied to its payment. The check was received by the plaintiffs on the 5th day of June, and on that day deposited by them in the Bank of Commerce of Memphis.' for collection. On the same
The taking of a bill, or note, or check, forn, pre-existing debt, without more, is not payment or satisfaction. The intendment or implication of law is that it is to op
The plaintiffs, having received the check, were under the duty to defendant of making due presentment of it for payment, and, if not paid, of giving due notice of its dishonor. Laches in the performance of this duty, resulting in loss or damage to the defendant, to the extent of such loss or damage, would operate a satisfaction of the original indebtedness. But if there was not loss or damage, the laches would not be material. 2 Morse on Banks, §§ 543-44; 2 Dan. Neg. Ins. §§ 1587-88.
It may be, the drawee of a check is not a suitable agent to be intrusted with its collection ; and it may be, that the Bank of Commerce, in selecting the Banking Company as the agent to collect the check and to remit the collection, rendered itself liable to the plaintiffs for whatever of loss might result to them from the unsuitable selection. The proposition is supported by the authorities, to which we tiave been referred. Morse on Banks, § 236; Drovers’ Nat. Bank v. Anglo-Am. Packing Co., 117 Ill. 110; (S. C. 57 Am. Rep. 855;) Mer. Nat. Bk. v. Goodman, 109 Pa. St. 422; (s. c. 58 Am. Rep. 728) ; Fifth Nat. Bank v. Ashforth, 123 Pa. St. 212. If this were a suit between the plaintiffs and the Bank of Commerce, founded on the averments of a want of care and diligence in intrusting the check to the payee for collection, the measure of recovery would be the actual loss the plaintiffs had suffered. 1 Dan. Neg. Ins. § 329; 1 Morse on Banks, § 252. Conceding that a payee is not a proper agent to be intrusted with the collection of a check, in
We think it is shown affirmatively by the evidence that the defendant suffered no injury from the selection of the Banking Company as the agent for the collection of the check. When the check was drawn he had no funds in the hands of the Banking Company to meet it. The small deposit he had made a few days previously had been exhausted, and his account overdrawn. It was not till two days after (the day the check was received in Memphis by the plaintiffs) that he had made an additional deposit, insufficient to meet the check, when it might be presented; and this was the condition of his account when the Banking Company suspended, and during all the time the check was in its hands. The Banking Company was under no duty- as the drawee to make a partial payment of the check, and, as agent of the payee, it was not within the scope of its authority or duty to receive such payment. — 2 Morse on Banks, § 446; Boone on Banking, § 179. Mr. Morse observes that whether or not a bank would be justified in making partial payment of a check may be questioned, and there is no authority on the point, and that banks would not often try to exercise such a right. Independent of this consideration, it is shown that at no time after the check reached the Banking Company would payment of it in money have been made, or anything tendered or offered in payment than exchange on New York, which could not have been issued earlier than the 9th of June, the day after its suspension and its insolvency became known. The check which had been filled up, and which did not leave the possession of the Banking Company until the 9th of June, was of no obligation on the company until that day; so long as it remained in the possession of the company, it was without obligation or validity. The stamping of the check
The judgment must be reversed, and a judgment rendered for the plaintiffs for the sum of $143.47, with the