75 Ark. 556 | Ark. | 1905
(after stating the facts.) Appellant has no just cause of complaint at the instructions of the court. They were quite as favorable to his defense as he was entitled to
According to the undisputed facts appellee was entitled to a verdict against appellant for the amount of the debt.
Giving the check, which was never paid, was not an extinguishment of the original debt, unless shown to have been accepted absolutely in payment. DeYampert v. Brown, 28 Ark. 166; Henry v. Conley, 48 Ark. 267.
Appellee forwarded 'the check for payment as soon as received, and notified appellant of its loss. Appellant, though repeatedly notified of the nonpayment and loss of the check, remained passive and silent, and took no steps to cause payment to be made. Conceding that • the loss of the check in the mail did not excuse appellee from presenting the same for payment, and that appellant was not bound to give a duplicate check, appellee did notify the Howard County Bank and appellant that the check was outstanding and lost. Appellant, after having acquiesced in the nonpayment on account of the loss of the check, and after having failed to assist in procuring payment, cannot now plead the nonpayment in release because his quondam partner had, in the meantime, wrongfully drawn the money out of the bank. In other words, he pleads, as a defense, the negligence of his creditor in failing to procure payment of the lost check whilst he, with full knowledge of the loss, stood by quiescent, and failed, when called upon, to object to the delay or to assist in bringing about the payment. This he cannot do.
In Kirkpatrick v. Home Building, etc., 119 Pa. St. 30, a case cited by counsel for appellant, the settled rule is stated to be that “a check received for debt is merely conditional payment, that is, satisfaction of the debt if and when paid, but that acceptance of such a check implies an undertaking of due diligence in presenting it for payment; and, if the party from whom it is-received sustains loss by want of such diligence, it will be held to operate as an actual payment.”
Applying the rule thus announced, it is not perceivable wherein appellee has failed to exercise the full measure of diligence in this instance in presenting the check for payment, and in notifying appellant of its loss and nonpayment.
The judgment is affirmed.
