23 Kan. 408 | Kan. | 1880
The opinion of the court was delivered by
This was an action on an account for corn sold and delivered. The defense was, payment. The sale was for cash, but on January 4, 1878, the defendants, plaintiffs in error, gave- to plaintiff a check of J. P. Hall & Co. on the First National Bank of Kansas City. On January 22, 1878, they gave him another check, drawn by the same-party upon the same bank. Plaintiff kept both checks till the 30th "of January, and then on presentation found that
Upon these facts, ought the judgment to stand? It is settled that the mere taking of a bank check is not a payment of the debt, (Kermeyer v. Newby, 14 Kas. 164,) and if the check be not paid, the party may return it and sue on the-original debt. It is also clear that the same strict rule of presentment and notice does not obtain as between the drawer and drawee. The former is not discharged unless he suffers some loss through the delay of the holder in presenting the check. (Gregg v. George, 16 Kas. 546; 2 Daniel on Neg. Insts., p. 513, §1587.) Therefore Hall & Co., the drawers, were clearly not discharged from their obligation to the party to whom they gave their checks, for they have lost nothing. If the checks had been presented and paid, they would simply have owed the bank so much more — the only difference would have been in the person of the creditor.
But it is claimed that a different rule obtains between the defendants, who-received the checks from Hall & Co., and the party to whom they transferred them. This is not a
( The case then stands thus: Plaintiff never received the checks as payment; the checks in fact were not drawn against a deposit in bank, and were therefore no appropriation of funds; there is no question between indorser and indorsee; the drawer received back the checks, and promised to pay the sums named therein, and at the time they were able to make good their promise. Under these circumstances, if defendants delayed insisting upon payment till the drawers failed, they must bear the loss, and the plaintiff, who never received the checks as payment and who returned them as soon as they were dishonored, is entitled to recover for his debt. (Kinyon v. Stanton, 44 Wis. 479.)
The judgment will be affirmed.