Smith v. Mills
230 P. 350
Or.
1924
Check Treatment
PIPES, J.

The pleadings of the parties are in accord that the transaction was a sale of the note and mortgage by appellant to respondent in consideration of her promise to pay therefor the sum of $5,032.

The complaint alleges:

‘ ‘ That on the 15th day of February, 1922, the plaintiff sold, assigned and transferred said promissory note by an endorsement thereof to the defendant, and at the same time the plaintiff made an assignment to the defendant of said mortgage for the consideration of five thousand and thirty-two ($5032.00) dollars, and which sum the defendant agreed to pay the plaintiff for said sale and transfer.”

The respondent’s amended answer alleges:

“That on or about the 15th day of February, 1922, the plaintiff agreed to sell to the defendant and the defendant agreed to purchase from the plaintiff said note and mortgage for the agreed sum of $5032.00.”

This contract called for a payment in money. In the absence of any agreement, either expressed or *502clearly implied, payment means the discharge of a debt or obligation in money, and in such case money is the sole medium of payment: 21 R. C. L., p. 9, § 3; Ibid., p. 37 § 34; Borland v. Nevada Bank, 99 Cal. 89 (33 Pac. 737, 37 Am. St. Rep. 32); Mansfield v. Dameron, 42 W. Va. 794 (26 S. E. 527, 57 Am. St. Rep. 884); note, 100 Am. St. Rep. 393; Marine Bank v. Chandler, 27 Ill. 525 (81 Am. Dec. 249); Graydon v. Patterson, 13 Iowa, 256 (81 Am. Dec. 432, and note); State Bank v. Byrne, 97 Mich. 178 (56 N. W. 355, 37 Am St. Rep. 332, and note, 21 L. R. A. 753).

But anything of value delivered by the debtor and accepted by the creditor in discharge of the debt will constitute payment: Tennessee Bond Cases, 114 U. S. 663 (29 L. Ed. 281, 5 Sup. Ct. Rep. 974, 1098, see, also, Rose’s U. S. Notes); Parker v. Carter, 91 Ark. 162 (120 S. W. 836, 134 Am. St. Rep. 60); Ryan v. Dunlap, 17 Ill. 40 (63 Am. Dec. 334). In such case it is the distinct agreement of the creditor to accept the thing in discharge of the debt that gives it the character of payment: Borland v. Nevada Bank, supra.

The respondent’s contention is that she paid her admitted debt by the delivery to appellant of a cashier’s check drawn by the State Bank of Portland for $5,032 in appellant’s favor, and by his acceptance of the check in discharge of her debt. The burden is on the respondent to prove payment: Willis v. Holmes, 28 Or. 265, 268 (42 Pac. 989); Peterson v. Thompson, 78 Or. 158 (151 Pac. 721, 152 Pac. 497). And since the payment relied upon consists of the acceptance by appellant of the cashier’s check in satisfaction of her debt, the burden remains with her to prove such acceptance, in that sense, by evidence or presumption. We have been favored with exhaustive briefs by counsel on the question of the presumption arising *503from the acceptance of the paper obligation of third persons in payment of a debt. The appellant’s contention is that the acceptance by the appellant of the cashier’s check of the State Bank as payment was presumptively conditional upon its being honored by the bank upon its due presentation, and that, the bank failing in the meantime, the debt was not discharged. Among many others, the following authorities will serve as examples: Matlock v. Scheuerman, 51 Or. 49, 58 (93 Pac. 823, 17 L. R. A. (N. S.) 747, note); Kiernan v. Kratz, 42 Or. 474, 484 (69 Pac. 1027, 70 Pac. 506); Johnson v. Iankovetz, 57 Or. 24, 28 (102 Pac. 799, 110 Pac. 398, 29 L. R. A. (N. S.) 709); 71 Cent. L. J. 393; Seaman v. Muir, 72 Or. 585, 589 (144 Pac. 121); Riner v. S. W. Surety Co., 85 Or. 293, 299 (165 Pac. 684, 166 Pac. 952).

On the other hand, the respondent contends that the rule of these cases applies only when the payment is of an antecedent debt, and does not apply where the delivery of the property and the payment are contemporaneous. Some of the cases cited are the following: Hall v. Stevens, 116 N. Y. 201 (22 N. E. 374, 5 L. R. A. 802); Gibson v. Tobey, 46 N. Y. 637 (7 Am. Rep. 397); Loth v. Mothner, 53 Ark. 116 (13 S. W. 594); Challoner v. Boyington, 83 Wis. 399 (53 N. W. 694); Gordon v. Price, 32 N. C. 385.

“Effect of transfer, without indorsement, of worthless check, or note of third-person,” is the title of an extensive note to Dille v. White, in 10 L. R. A. (N. S.), 510, where the authorities are collated.

All of the authorities concur, however, that whatever may be the presumption arising from accepting the paper of a third person, the ultimate question is one of the intention of the parties to the transaction. In order that the acceptance of the, cashier’s check *504shall discharge the debt, the transfer must be by agreement of the parties with that intention: Dille v. White, supra, and note; Black v. Sippy, 15 Or. 574 (16 Pac. 418); Johnston v. Barrills, 27 Or. 251 (41 Pac. 656, 50 Am. St. Rep. 717); Kiernan v. Kratz, 42 Or. 474 (69 Pac. 1027, 70 Pac. 506); Porter and Porter v. Talcott, 1 Cow. (N. Y.) 359, 383.

We do not find it necessary to reconcile the conflict, nor to announce a rule as to what the presumption of payment is in cases like those cited by respondent. Considering only the evidence adduced by respondent in support of her plea of payment, we are constrained to hold that she has not brought her case within the rule she contends for. She has not proved that she authorized the delivery of the cashier’s check for any purpose, or that she and the appellant agreed with each other that the cashier’s check accepted by appellant from her agent should be, or was, delivered by her or accepted by appellant in discharge of her obligation to pay $5,032 for the note and mortgage she received. Her evidence is to the contrary. On the day before the final transaction she authorized Mr. Eckhorn, her agent, to draw from her savings account in the State Bank the sum of $5,000, with which to pay that much on her debt. Following her instructions he immediately drew this money. The next day she drew her check to him for $35 to fill the amount of the purchase price. He put this money in an envelope, and had possession of it, with instructions to pay it to appellant on receipt of the Chapin note and mortgage. He received this note and mortgage from Mr. Bader, appellant’s agent, and delivered them to respondent, for she testifies that she deposited them with the bank and took a receipt for them. Then, at twenty minutes *505after two, she left the bank to keep an engagement and did not again return or personally participate in the subsequent transaction. It was after she was gone that Mr. Eckhorn, as he testifies as her witness, asked Mr. Bader if he would have the money, or a check or draft, and upon receiving the answer that he would take a cashier’s check, went into the bank, and with her money then in his hands, purchased a cashier’s check of the bank, payable to appellant, which he himself drew and signed as vice-president of the bank, and delivered it to Mr. Bader, who accepted it. Respondent testifies that she knew nothing about the delivery or acceptance of the cashier’s check until the next day at 2 o’clock, some hours after the bank had failed, and the consequent dishonor of the check, and that she supposed until then that appellant had' received the money. Therefore, all that Mr. Eckhorn did, in offering the option, in buying the check with her money, in drawing the check as vice-president, and delivering it to Mr. Bader, all after she left the bank, was without her consent and without her knowledge, not according to. her intention, and against her instructions. No authority can be implied in her agent not only to go beyond, but contrary to, his authority. Her mind, therefore, did not meet with appellant in the contract she relies upon here to effect her discharge.

The element essential to discharge a money obligation by a substituted payment of something else— an agreement of the parties to that effect — is wholly, lacking, and the defense of payment fails. The respondent did not accept the act of her agent until after the dishonor of the check and the rights of the parties had become fixed by the bank’s failure. She cannot rely upon such a ratification to charge the *506appellant on a contract that was not before binding npon her: Pacific Mill Co. v. Inman, 50 Or. 22, 28 (90 Pac. 1099).

The defense fails for another reason. The respondent relies npon the act of her agent in paying her debt with a cashier’s check. Accepting the agency in respect of the act, she accepts it in respect of her agent’s conduct characterizing the act. She accepts the agency in whole and not in part, what part of it is detrimental as well as what is beneficial to her: McLeod v. Despain, 49 Or. 536, 552 (90 Pac. 492, 92 Pac. 1088, 124 Am. St. Rep. 1066, 19 L. R. A. (N. S.) 276); Porter v. O’Donovan, 65 Or. 1 (130 Pac. 393); Wilson v. McCarthy, 66 Or. 498 (134 Pac. 1189); Bridges v. Hurlburt, 91 Or. 262 (178 Pac. 793). Her agent drew the cashier’s check as a high officer of the bank within a few minutes of its closing its doors for the last time. The bank being on the verge of failure, he must be presumed to have known, at least, that it was in a precarious condition. Nothing is shown to have happened between the closing hours of that day and the opening hour of the next day to account for the failure. There is no evidence worthy of the name to overcome the presumption of. his knowledge. He testified on cross-examination that he would have paid the money, if he had known the bank was going to fail, which is far short of proving a want of knowledge. When he delivered the check to Mr. Bader, the act itself was a representation that the check was good for its face and would be honored: Hewitt v. Waterman, 3 La. Ann. 716. It was his duty, at that time, to disclose allot the facts that he knew affecting the value of the check. Paper accepted either in payment or for *507other consideration is not binding upon the acceptor, in the absence of a disclosure of such facts within the knowledge of the other party: Snyder v. Findley, 1 N. J. L. 48; Willson v. Foree, 6 Johns. (N. Y.) 110 (5 Am. Dec. 195); Pierce v. Drake, 15 Johns. (N. Y.) 475; Martin v. Pennock, 2 Pa. St. 376; Hewitt v. Waterman, 3 . La. Ann. 716; Rothmiller v. Stein, 143 N. Y. 581 (38 N. E. 718, 26 L. R. A. 148).

Both parties here are innocent. But it was respondent’s agent whose conduct caused the loss. He converted her good money into a bad check, with which to pay her debt. Though innocent herself, she must bear the loss of her agent’s dereliction: Fiore v. Ladd & Tilton, 22 Or. 202 (29 Pac. 435); Copeland v. Tweedle, 61 Or. 303 (122 Pac. 302); Bridges v. Hurlburt, supra.

The decree below must be reversed and appellant’s prayer for relief be allowed, and it is so ordered.

Reversed and Decree Entered.

McBride, O. J., and Bean and Brown, JJ., concur.