13 Mich. 282 | Mich. | 1865
. The counsel for the defendant in error — plaintiff below — insists .that the check of Simson, importing of itself a sufficient consideration, and being for the whole amount •of the money of the drawer on deposit in the bank, operated, as between the drawer and the payee, as an assignment to the latter of the money, or the drawer’s right to it; axxd as the drawex-, before giving the check, might have sustained an action against the bank for the amount, the payee, as assignee of the drawex-, may now maintain the action, under the Statute of 1863, authorizing the assigixee of a chose in action to sue in his own name. I do not think the question whether a •check can, in any case, operate as an assignment, by •.the drawer, of the money, or the drawer’s right to it,
’ If, on the other hand, as we think the testimony clearly tends to show, he was only to act in the matter after the death of Simson, appropriating the money first to the payment of funeral expenses, and the balance to be paid to the family, or some member of 'it; then, unless the delivery of the check can be sustained
Did, then, the . execution and delivery of the check constitute a valid donatio causa mortis ? Without acceptance by the bank, or some special undertaking on its part, we do not think the bank could be held liable upon a check, as such, to the payee. There is no privity of contract between the payee and the drawee; and if the money is not paid upon the check, the drawee is only accountable to the drawer. The payee does not take an unaccepted check, relying upon the credit of the drawee, but that of the drawer. We do not, therefore, concur in the opinion expressed in Fogarties v. State Bank, and Ambler v. Same, 12 Rich., (S. Car.,) R., 518, holding the drawee of an unaccepted check, liable to a suit by the payee.
The, drawer, therefore, in the present case was the only party who could have been held liable to the plaintiff, if any; and we think no- mere contract, liability or obligation of the donor can be recognized as the proper subject of a gift causa mortis. — See Story's Eq. Jur., §607a, §607c; Meach v. Meach, 24 Vt., 598; Raymond v. Sellick, 10 Conn., 480; Holley v. Adams, 16 Vt., 206; Harris v. Clark, 3 Comst., 94; Tate v. Hilbert, 2 Ves., Jr., 111; Thompson v. Dorsey, 4 Md. Ch. Decis., 149; Dole v. Lincoln, 31 Me., 422.
We see, therefore, no ground, which the evidence in this case tends to establish, upon which the plaintiff below was entitled to recover.
The judgment of the Circuit Court must be reversed,