40 Ga. App. 517 | Ga. Ct. App. | 1929
(After stating the foregoing facts.) It will be noted that the petition does not allege that the drawer of the check had the money in the bank to meet it had it been presented for payment in due time; and there is no obligation on the plaintiff so to allege, as this is a matter of defense. This being true, there is nothing on the face of the pleadings to show that the drawer sustained any loss because of the delay, or that the delay was the cause of the nonpayment. If the drawer of the check did not have the funds in the bank during the time between the giving of the check and the closing of the bank, he sustained no loss, for the check would not have been paid had it been presented; and if he did not sustain any loss because of the delay in the presentation of the check, then the plaintiff may recover the amount thereof regardless of the delay. “The drawer of a check upon a bank is not absolved from liability thereon because of any delay in presenting the check for payment, when it does not appear that any loss resulted to the
Furthermore, what is a reasonable time for presentation of a check is generally a question of fact for the jury. In Comer v. Dufour, 95 Ga. 378 (supra), our Supreme Court said: “What is a reasonable time will depend upon circumstances and the relation of the parties between whom the question arises.” In Tomlin v. Thornton, 99 Ga. 585 (27 S. E. 147), the first three headnotes are as follows: “1. In order to charge the drawer of a bank check, who has funds with which to meet the same in the bank upon which it is drawn, with liability in case the cheek is dishonored, the payee or holder must present it for payment within a reasonable time; otherwise, the delay will be at his peril. 2. What is a reasonable time will depend upon circumstances, and will in many cases depend upon the time, the mode and the place of receiving the check, and upon the relation of the parties between whom the question arises. 3. If the bank drawn upon is at a place distant from that at which the payee receives the check, and fails before the check is presented, it will, as a general rule, be a question for a jury, in the light of all the attendant facts and circumstances, to determine whether or not due diligence was observed in presenting the check.” (Italics ours.) And in the opinion (p. 587) the Supreme Court said: “We think the best and safest conclusion to be reached in the matter is, that the question whether or not due diligence was
In order for the judge to sustain the general demurrer to the original petition, he had to assume that the defendant had the money in the bank or an arrangement with the bank to pay the check, and that the loss was due to non-presentation for payment. This he could not legally do. When the plaintiff alleges that she is the bona ñde holder of the check, that it is due and unpaid, and that demand has been made and payment refused, she has alleged a prima facie case. Why the check was not paid, or that the nonpayment was due to the negligence of the plaintiff, is a matter of defense, to be set up by the defendant. The court erred in sustaining the general demurrer and dismissing the original petition.
Under this ruling it is not necessary to pass upon the disallowance of the amendment, as the amendment, which was- proposed • as a result of the court’s ruling on the demurrer and to meet the demurrer, was not necessary to set out a cause of action.
Judgment reversed.