187 Iowa 202 | Iowa | 1919
I. Unless Section 3060-al89, Code Sup
Leaving, then, the statute out of present consideration,
II. Has the statute changed the rule? It provides that:
“A check of itself does not operate as an assignment of any part oí the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.”
The construction of this statute-has been referred to, but has never been squarely determined in this court. See Hove v. Stanhope St. Bank, 138 Iowa 39; Smith v. Sanborn St. Bank, 147 Iowa 640; Dolph v. Cross, 153 Iowa 289. But Mr. Daniel, in the second volume of his work on Ne-' gotiable Instruments, Section 1643, says:
“The provision of the statute [referring to the Negotiable Instruments Statute] that a check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank is a declaration of the rule that, as against a drawee bank, a check is not an assignment of the fund. But as against the drawer, the giving of a check for value on an ordinary bank deposit should be considered an assignment of the fund pro tanto.”
And he construed the Hove case, supra, to support
“This section was undoubtedly enacted for the purpose of protecting banks against losses which might be occasioned by the double payment of checks on general deposit, and its only, intent and purpose is undoubtedly to protect banks only when they are acting in good faith and without any attempt to assist particular persons in the collection of their debts to the exclusion of others who are equally entitled as much to protection. * * * Giving to the section of the Code under consideration its full force and effect in law actions, we are of the opinion that, where the parties are properly in court, in an equitable action, and where it is shown that the power intended to assign the entire fund is a part thereof, the rule of the cases heretofore referred to should govern, and the party holding such assignment of a fund on general deposit should be protected as against subsequent claimants at least.”
Construing. this statute provision, it was said, in Farrington v. Fleming Com. Co., 94 Neb. 108 (142 N. W. 297):
“If the effect of the Negotiable Instruments Act is to adopt the rule that no action against the deposit bank can be maintained upon the check by the holder ‘unless and until it accepts or certifies the check,’ which it is not necessary now to decide, still that section is not applicable to
It may be conceded that Kasemeyer v. Smith, 22 Ida. 1 (43 L.R.A. [N.S.] 100), and Baltimore & O. R. Co. v. First Nat Bank, 102 Va. 753 (47 S. E. 837), and possibly Boswell v. Citizens Sav. Bank, 123 Ky. 485 ( 96 S. W. 797), are to the contrary; but we decline to follow them. We hold that, even in a law action, the statute has not changed the rule as between the drawer, his creditors, and the bank that pays the check.
The judgment below is — Affirmed.