112 Wis. 591 | Wis. | 1902
This case, as argued by counsel, presents several interesting questions as to the relations resulting from the giving of a check for value on an ordinary bank deposit, if, as is now fully settled in Wisconsin, the giving of such "check will be construed to intend an assignment of the fundyw tanto as between the maker and payee. Pease v. Landauer, 63 Wis. 20. The principles and reasons lying at the foundation of the rules of law fixing the rights of an assignee of a fund in the hands of an ordinary debtor or de
The further question is interesting, and not yet decided, in Wisconsin at least, whether, from the very purpose of a deposit to be drawn against by checks to different parties, there does not arise an understanding and agreement, in-advance, by the bank to pay such deposit, not necessarily m solido as between ordinary debtor and creditor, but in such sums and to such people as the depositor may, by his checks, direct. If such an agreement is to be implied from the - ordinary course of business, there would seem forceful logic for the conclusion that the assignment resulting from the giving of a check for value, complete and valid as between the maker and payee, should be enforceable in a suit, at law against the bank. It must be conceded that the overwhelming weight of authority is to the negative of this conclusion, and yet the greater part of that authority is from jurisdictions which do not recognize the rule of Pease v. Landauer, 63 Wis. 20, and give to a check no efficacy whatever as an assignment, but recognize it merely as an authority from the bailor to his bailee. The question thus suggested is reserved in Pease v. Landauer, in Skobis v. Ferge, 102 Wis. 122, and in Dillman v. Carlin, 105 Wis. 14, 17, and, but for certain statutory provisions recently enacted in Wisconsin, would be worthy of grave consideration, and perhaps decision, in the present case. But, inasmuch as by the new Negotiable Instruments Law (Laws of 1899, ch. 356, sec. 1684—5) it is provided that the bank shall not be liable to the holder of a check unless and until it accepts or certifies it, the question of such liability independently of the statute is no longer a general or important one, and, unless essential to the decision of the instant case, should not further occupy pur time; although the present checks, having been given in 1897, are not controlled by that statute.
Independently, then, of the question whether the holder-
That a transfer of the depositor’s interest in the whole fund by operation of law and without value confers no higher rights than he had, is too well settled in Wisconsin
But, says the appellant, the maker may revoke a check, and thereafter the bank has no right to pay it, and the maker’s death is ipso facto a revocation when brought to the bank’s knowledge. Except the last, these propositions are supported by a vast array of authority dating from the earliest recognition of the law merchant, and, correctly understood, are not to be gainsaid. They, however, are applicable only to the relation between the maker and his bailee or depositary. Their use in a case like the present is due to failure to distinguish the two separate functions of a bank check as established in our jurisprudence. A check is, and always has been, primarily an authority from the maker upon which his banker may rely, but in which the latter has no interest until he has acted thereon. As such authority merely, it is, of course, revocable until acted on, and its revocation takes from the banker all the protection it would otherwise afford him as a mere authority or directiqn to pay. In that sense he thereafter has no right to pay, and such statement of the law is strictly accurate when and where a check is nothing more, though doubtless it has been used in other jurisdictions without the qualification necessary to its exact comprehension. Where, however, a check for a valuable consideration works an assignment of the deposit, equitable or legal, such a check is something more than a mere authority to pay. It also evidences a contract between the
In this view, then, we need not consider whether the death of the drawer revokes a check. If it does so, it is no more efficacious than a revocation by act of the party living. The law will not, of its own motion, work the same fraud which it would not permit a living person to perpetrate by his own act.
Perhaps this discussion ought not to close without a precautionary suggestion against carrying too far the logical deductions from the assertion that a partial assignment of a fund is effective to give the assignee complete ownership, except as he lacks right of action. This does not warrant the view that by any process of notice or demand he can impose on the nonconsenting depositary any duty to protect his equitable rights, or any trammels upon the latter’s freedom in paying out the fund to others, either in solido or in parcels, as he pleases. At this point in the logic one is con
From what we have already said the conclusion must be manifest. Bromley, in his lifetime, having transferred the fund in question by his four checks for the very strongest consideration, namely, the receipt and incorporation into that fund of the payee’s money, it belonged thereafter to the payee, and not to Bromley. The bank had absolute right*to consent to and recognize such transfer. It did so, and has paid the fund to its owner. This constitutes a complete defense against any demand for that money by either Bromley or his representative. Such defense is good in an action at law none the less because the bank might, at its election, have compelled the holder of the checks to sue in equity. Dobbs v. Kellogg, 53 Wis. 448. It might equally have consented to an action at law. The transfer from Bromley having been complete as against him in his lifetime, it was equally complete as against the plaintiff, his administrator; and the latter is shown by the facts proved and found to have no right of recovery. The judgment against him was therefore correct.
By the Court. — Judgment affirmed.