133 N.W. 1026 | N.D. | 1911
(after stating the facts as above). Two questions are before us for discussion: (1) Was appellant negligent in depositing and transmitting the check received from the Baird Investment Company; and (2), if negligent, was respondent damaged by such negligence, so as to be discharged from liability? Section 6488, Rev. Codes 1905, requires that a check be presented for payment within a “reasonable time” after its issue, and declares that if not so presented the “drawer will be discharged from liability thereon to the extent of the loss occasioned by the delay.” On this subject of presentment, Bolles, in his work on Banking (vol. 2, p. 603), says: “As a check is not intended to circulate like money it should be promptly presented for payment. Indeed, the holder must observe very definite rules in presenting it; for if he does not his rights against the drawer may be impaired. First, when the holder and drawee live in the same place, a check must be presented on the same day or on the next after receiving it. Second, when they live in different places, the holder must send it forward, in a reasonably direct way, on the same day or the next, for presentation. Third, when there is a clearing house in the place of the drawer, a day longer may be given for collection through the medium of this institution. Fourth, on some occasions, for example, when the holder knows that the bank’s failure is impending, he must make an immediate presentation, if possible, to prevent the drawer from loss. This rule is with less urgent reason denied. Fifth, when the last day for making direct presentation, or sending it away for this purpose, falls due on Sunday, the check is payable the following day.” These statements are, no doubt, borne out in the main by the authorities. In order that negligence in presentment, however, shall preclude a recovery, it is necessary to prove that the defendant was injured thereby, and it is only the loss occasioned by the delay which can be used in avoidance of the original liability. Since, in the case at bar, the check was presented for payment before the suspension of the bank, and while it
But this is only part of the negligence claimed by the respondent to have been committed by the plaintiff. Its chief ground of complaint is that the plaintiff, Pickett, gave the check to the First National Bank of Duluth for collection, and that that bank acting as the Agent of plaintiff, instead of sending the same to the other local bank, the National Bank of Dakota, for collection in cash, sent it to the drawee of the check, the People’s State Bank. There can be no question as to the strength and conclusiveness of this contention. The law is well settled that a collecting bank “must not transmit its checks or bills directly to the bank or party by whom payment is to be made, with the request that remittances be made therefor. It is considered that no firm, bank, corporation, or individual can be deemed a suitable agent, in contemplation of law, to enforce, in behalf of another, a claim against itself.” See Dan. Neg. Inst. §§ 328a, 1599; National Bank v. Johnson, 6 N. D. 180, 69 N. W. 49; Drovers’ Nat. Bank v. Anglo-American Packing & Provision Co. 117 Ill. 100, 57 Am. Rep. 855, 7 N. E. 601; 5 Cyc. 506; German Nat. Bank v. Burns, 12 Colo. 539, 13 Am. St. Rep. 247, 21 Pac. 714; Western Wheeled Scraper Co. v. Sadilek, 50 Neb. 105, 61 Am. St. Rep. 550, 69 N. W. 765; Pinkney v. Kanawha Valley Bank, 68 W. Va. 254, 32 L.R.A. (N.S.) 987, 69 S. E. 1012, Ann. Cas. 1912 B. 115; Anderson v. Rodgers, 27 L.R.A. 248, and note (53 Kan. 542, 36 Pac. 1067); Bank of Rocky Mount v. Floyd, 142 N. C. 187, 55 S. E. 95; Winchester Mill. Co. v. Bank of Winchester, 18 L.R.A. (N.S.) 441, and note (120 Tenn. 225, 111 S. W. 248); Minneapolis Sash & Door Co. v. Metropolitan Bank, 76 Minn. 136, 44 L.R.A. 504, 77 Am. St. Rep. 609, 78 N. W. 980; First Nat. Bank v. Citizens’ Sav. Bank, 123 Mich. 336, 48 L.R.A. 583, 82 N. W. 66; R. H. Herron Co. v. Mawby, 5 Cal. App. 39, 89 Pac. 872; Givan v. Bank of Alexander, — Tenn. —, 47 L.R.A. 270, 52 S. W. 923; Bedell v. Herbine Bank, 62 Neb. 339, 86 N. W. 1060; Jefferson County Bank v. Hendrix, 147 Ala. 670, 1 L.R.A. (N.S.) 246, 39 So. 295; Farley Nat. Bank v. Pollock & Bernheimer, 145 Ala. 321, 2 L.R.A. (N.S.) 194, 117 Am. St. Rep. 44, 39 So. 612, 8 Ann. Cas.
The only possible contention that appellant can put forward is that there is nothing to show that if the check had been sent to the other-bank in Dakota for collection and presented for payment that payment would have been made in cash. On this question, however, the burden' of proof is under the authorities, upon the party guilty of the primary negligence to negative the presumption of injury, and where due presentment is not made the burden of proof is upon the holder of the-check to show that the drawer has not suffered injury.
“In this case,” says the. supreme court of Kansas, in Anderson v. Bodgers, 53 Kan. 542, 27 L.R.A. 248, 36 Pac. 1067, “the check seems-to have-been forwarded for payment in due time, but it was sent directly to the drawee by mail, with the request that the bank of Kick-field remit the amount by mail in exchange in Kansas City. The Hamilton County Bank therefore selected the drawee of the check as its agent for collection. That this was negligence is well settled by the authorities. It is said, in 1 Daniels on Negotiable Instruments, § 328a: 'For the purposes of collection, the collecting bank must employ a suitable subagent. It must not transmit its checks or bills directly to the bank or party by whom payment is to be made, with the request that remittances be made therefor. It is considered that no firm, bank, corporation, or individual can be deemed a suitable agent, in contemplation of law, to enforce, in behalf of an other, a claim against itself.’ This proposition is sustained by abundant authorities. Drovers’ Nat. Bank v. Anglo-American Packing & Provision Co. 117 Ill. 100, 57 Am. Rep. 855, 7 N. E. 601; German Nat. Bank v. Burns, 12 Colo. 539, 13 Am. St. Rep. 247, 21 Pac. 714; Merchants’ Nat. Bank v. Goodman, 109 Pa. 422, 58 Am. Rep. 728, 2 Atl. 687; First Nat. Bank v. Fourth Nat. Bank, 6 C. C. A. 183, 16 U. S. App. 1, 56 Fed. 967; Farwell v. Curtis, 7 Biss. 160, Fed. Cas. No. 4,690.
This case discusses nearly all of the questions involved on this appeal, and is abundantly supported by authority. See Anderson v. Rodgers, 53 Kan. 542, 27 L.R.A. 248, 36 Pac. 1067; Little v. Phenix Bank, 2 Hill, 425; Ford v. McClung, 5 W. Va. 166; Daniels v. Kyle, 1 Ga. 304; Hamlin v. Simpson, 105 Iowa, 125, 44 L.R.A. 397, 74 N. W. 906; Watt v. Gans & Co. 114 Ala. 264, 62 Am. St. Rep. 99, 21 So. 1011. It is true that some cases, such as First Nat. Bank v. City Nat. Bank, 12 Tex. Civ. App. 318, 34 S. W. 458, seem generally to hold that the rule does not apply where the drawee bank was insolvent; but in these cases, unlike the case at bar, there appears to have been no evidence that, though technically insolvent, the bank was continuing to pay out money, and was of general good repute.
Nor do we believe that any usage or custom among the banks, eve» if proved, would, as far as the respondent, the Baird Investment Company, is concerned, change the rule. The Baird Investment Company certainly had the right to rely upon the general rule of law, at any rate, without proof of a knowledge by it of the custom, and an express or implied consent thereto. Minneapolis Sash & Door Co. v. Metropolitan Bank, 76 Minn. 136, 44 L.R.A. 504, 77 Am. St. Rep. 609, 78 N. W. 980; American Exch. Nat. Bank v. Metropolitan Nat. Bank, 71 Mo. App. 451. The authorities just cited, indeed, even go so far as to hold that any such custom would be unreasonable and void, and such is undoubtedly the general rule. All authorities agree that, in-order that such a custom may be pleaded and taken advantage of, it must be proved to have been a custom which was general and welT
The judgment of the District Court is affirmed.