Merchants & Planters Bank v. New First National Bank, 116 Ark. 1

116 Ark. 1 | Ark. | 1914

Hart, J.,

(after stating the facts). (1) In a case note to 16 Am. & Eng. Ann. Cases, at page 213, it is stated that the rule seems to be well settled that after a bank has certified a check, the drawer can not stop payment on it, and that the mere fact that the drawer has notified the bank not to pay the check does not release the bank from its liability thereon. A number of cases from various States are cited to support the rule.

In the ease of Merchants’ Bank v. State Bank, 10 Wallace, U. S. 604, Mr. Justice Swayne, speaking for the court, at page 647, said:

“By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is g'ood then and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume. The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Tims it continues to perform its important functions until in the course of business it goes back to the bank for redemption and is extinguished by payment.

“It can not be doubted that the certifying bank intended these consequences, and it is liable accordingly. To hold otherwise would render these important securities only a snare and delusion.

“A bank incurs no greater risk in certifying a check than in giving a certificate of deposit. In well-regulated banks, the practice is at once to charge the check to the account of the drawer, to credit it in a certified check 'account, and when the cheek is paid to debit that account with the amount. Nothing can be simpler or safer than this process.

“The practice of certifying checks has grown out of the business needs of the country. They enable the holder to keep or convey the amount specified with safety. They enable persons not well' acquainted to deal promptly with each other, and they avoid the delay and risks of receiving, counting,, and passing from hand to hand large sums of money.

“It is computed by a competent authority that the average daily amount of such checks in use in the city of New York, throughout the year, is not less than one hundred millions of dpllars.

“We could hardly inflict a severer blow upon the commerce and business of the country than by throwing a doubt upon their validity. ’ ’

This is conceded to be the correct rule, by counsel for the defendant, but it is contended by them, in the first place, that the notation on the margin of the check is not equivalent to a certification by the bank, and that if it were, because the cheek was payable at a future time, it became to all intents and purposes an inland bill of exchange, and some authorities are cited by them in support of the latter contention.

(2) In regard to the first contention made by counsel for the defendant it may be said that the check was made payable on November 1, 1911, and on the 29th day of June the drawer of the check caused this notation to be made on it by the cashier of the bank: ‘ ‘ Certified for $2,000. 6/29/1911. B. O. Powell.” On the 1st day of July, 1911, the check was delivered to A. C. Stuart to be by him and in turn delivered to John J. Lentz in compliance with the terms of the contract on that day executed between Lentz and the Ritchies. When Ritchie presented the cheek to the bank for certification it was manifest that he intended to negotiate it and when certified by the bank the certification became an acknowledgment by the bank that Ritchie would have funds on deposit which the bank would pay over to the holder of the check upon its being presented after November 1, 1911. The word “certify” clearly meant an absolute promise on the part of the bank to pay the check when presented to it on the day named. The language clearly and unequivocally imported an absolute promise to pay by the 'bank.

(3) In regard to the second contention of counsel for the defendant, it may be said that in the Case of Bill v. Stewart, 31 N. E. 386, the 'Supreme Court of Massachusetts said that a check is a negotiable instrument and a holder of it in good faith and without notice of any infirmity of title is entitled to maintain an action upon it against the maker, although the latter has a good defense as against the payee. The court further held that the fact that it is postponed does not take the case ont of the rule.

In the case of Champion v. Gordon, 70 Pa. St. 474, 10 Am. Rep. 681, the same contention was made as is made by counsel for defendant in the present case. Mr. Justice Sharswood, who was not only a very able and learned judge, but also a law writer of great renown delivered the opinion of the court, and said:

“The law merchant recognizes clearly a distinction, in many respects between checks en banks and ordinary bills ef exchange. One difference is that, when the former are payable on demand or at sight, no days of grace are allowed. The same rule holds when they are postdated. Byles on Bills, 14, note; 3 Kent’s Com. 104, note; In re Brown, 2 Story’s Rep. 502; Daniels v. Kyle, 1 Kelly, 304; Mohawk Bank v. Broderick, 10 Wend. 304; Salter v. Burt, 20 Id. 205; Andrew v. Blachly, 11 Ohio, St. 89; Westminster Bank v. Wheaton, 4 R. I. 30. Whether it applies also to checks payable at a future day named, is a question upon which there is a contrariety of opinion and decision. Mr. Justice Story says: ‘The argument pressed is that checks are always and properly payable on demand, and .that, when payable at a future time, they become to all intents and purposes inland bills of exchange. But I am not, by any means, prepared to admit the validity or force of this distinction; and no case has been cited which, in my judgment, satisfactorily establishes it. A check is not less a check, because it is postdated, and thereby becomes, in effect, payable .at a future and different time from that on which it is drawn or issued. This is sufficiently apparent -from the case of Allen v. Keeves, 1 East. 435.’ ”

The learned justice further said: “If such an order drawn upon a bank, payable at a future day named in it, must be considered as .an inland bill of exchange, and not a check, then the payee or holder has the right to present it at once for acceptance, protest it at once for nonacceptance, and sue the drawer immediately. Should it be accepted, however, the funds of the drawer in the bank would necessarily be thereby tied up, until the day of payment. All the objects of directing payment at a future day would thus be frustrated. What the drawer undertakes is, that on a day named he will have the amount of the cheek to his credit in the bank. In the meantime he wants the full and free use of his entire deposit. It is not denied that a post-dated check can not be presented for acceptance. That is, by implication, payable on a future day. Why, then, is a check expressly so made payable, to stand on a different ground?”

Lentz, the holder of the cheek in this instance, resided in Columbus, Ohio. On the 26th day of February, 1912, he presented the check to the New First National Bank of that place, with which bank he transacted his banking business. The bank received the check as cash because it was certified and placed the amount to the .credit of Lentz. It was then forwarded for collection in due course of business and payment was refused by the Merchants & Planters Bank of Camden because it had been enjoined from making payment by the chancery court and the check was, therefore, protested for nonpayment.

Before the New First National Bank of Columbus had learned of this fact, Lentz had checked out of the bank all of his deposit and his account on March 4, 1912, showed an overdraft of $872.67. The testimony of the bank in this respect is not contradicted, and it is, therefore, shown to be an innocent purchaser for value in the usual course of business.

The fact that Lentz deposited the check with a bank at Columbus, Ohio, instead of collecting’ it from the bank on which it was drawn, is a matter of no moment as tending to put the bank on notice that the check was subject to any infirmity. This is so because Lentz resided in Columbus, Ohio, and deposited the check with a bank there with which he usually transacted his business. The bank there being a bona fide holder for value in the usual course of business, was not affected by any fraud in the transaction between the Ritchies and Lentz. Bothell v. Fletcher, 94 Ark. 100; Exchange National Bank v. Little, 110 Ark. 263; Harbison v. Hammons, 113 Ark. 120, 167 S. W. (Ark.) 849; Blake v. Hamilton Dime Savings Bank Co., 20 L. R. A. (N. S.) 290, 16 Am. & Eng. Ann. Cases, 210.

(4) In the last mentioned case the Supreme Court of Ohio held: The object of certifying a check is to enable the holder to use it as money. The drawer or indorser of a certified check can not, 'alter its delivery, revoke it or stop payment upon it by notice to the drawee not to pay, and a bank that has received .a certified check for deposit and has credited the depositor with the amount of it, is a bona fide holder ond may enforce payment of it, notwithstanding the fact that it may, before payment to the depositor, have received notice that the check was fraudulently obtained by the depositor.”

It follows that the decree must be affirmed.