31 N.J.L. 563 | N.J. | 1864
This suit was brought on a cheek drawn upon the defendants by Messrs Andre Brothers to the order of the plaintiff. The check was dated October 29th, 1859, and was for the sum of $2730. On the trial of
The single question before this court now is, was the judge correct in his view that there was no evidence from which the jury had the right to infer, either upon the general principles of the commercial law or from the local usage which is claimed to have been proved in the case, that the check in question had been accepted by the defendants ?
On the day of the date of the check, as appears from the undisputed testimony in the cause, the plaintiff deposited it in the Bank of Commerce, of the city of New York, to be transmitted for presentation to the defendants. The Bank of Commerce, with the same view, passed it to the Ocean Bank of the same city, by which, on the thirty-first day of October, between the hours of twelve and one A. m., it was delivered to the messenger of the defendants. The check so received was retained by the defendants until the following day, when about the hour of twelve o’clock, noon, they returned it marked “not good” to the Ocean Bank. On the following morning at about ten o’clock, the Ocean Bank returned the check to the Bank of Commerce, which immediately notified the plaintiff of its dishonor.
It thus appears that the check in question was retained by the defendants after the same came to them for payment for a period a little short of twenty-four hours, before it was returned to the hand from which they received it.
The first question to be decided in the case is, does this delay to make return of the check raise an implied acceptance on the part of the defendants by force of the ordinary principles of the law merchant?
There can be no doubt that the drawee of a bill of'exchange or check, can so deal with it that, although he make no express acceptance, the law, with an eye to the public interest, will infer an acceptance on his part. Thus if suck drawee were to return tke bill in his possession contrary to the usual
Applying the principle, sustained by these authorities, to the point now considered, it is clear that the delay of the defendants in returning the check in question was not of such character that the law will imply from it an acceptance.
But it was further urged on the argument, that the defendants had placed themselves, with regard to this check, in the position of a member of the clearing-house of New York, and that consequently they are bound by the usages of that association; and that one of such usages requires dishonored checks to be returned to the party from whom they were taken, on the day of their receipt, or through the clearing-house on the following day.
It appears from the testimony, that the Bank of Commerce and the Ocean Bank were both members of the clearing-house, and that the latter bank was the agent of the defendants in the city of New York for the redemption of their circulating bills, and that on the 5th May, 1857, they had given notice, to that effect, by advertisements in the public prints, and that such advertisements also contained a statement to the-effect that checks on the defendants, received in the exchanges, “ not good ” would be returned through the same channel.. Under this notice, from the time of its publication to the period of the transaction in question, the Ocean Bank was-in the habit of receiving, at the clearing-house, in making its exchanges, all cheeks drawn on the defendants in the same manner as it did checks drawn on itself or other hanks of the city. The proofs further showed that it was the ordinary usage for the banks, that were members of this association, when they received, through their exchanges, any check or bill of exchange, drawn on a bank of the city of New York, and when such hill or check was dishonored, to return it tho same day on which it was received, or, at the furthest, through the clearing-house in their exchanges of the day following.
Admitting, for the moment, that the usage above stated applies to the check in question, let us see, under this condition of affairs, what were the rights and responsibilities of the respective parties.
By the notice above referred to, the Ocean Bank offered to receive all checks drawn upon the defendants, and passed to
But waiving the above argument, and adopting the opposite hypothesis, that the Ocean Bank was the agent of the defendants in such a sense as to make the defendants subject to all the usages of the clearing-house, still, it appears very evident, that the proofs do not show that the plaintiff has any cause of action against them.
On these grounds it appears to me that there is no error ■ apparent on the record or in the charge of the court, and that, therefore, the judgment below should be affirmed.
For affirmance — Beasley, C. J., Cornelison, Elmer, Fort, Green, Ch., Haines, Kennedy, Yan Dyke, Vre-BENBTTRGH, WALES. 10.
For reversal — Hone.