Plaintiffs sued defendants for a balance of account, with a special count upon the indorsement of a-protested draft which had been taken in conditional payment, and dishonored.
The material facts show that on December 14, 1883, defendants, dealing at Ishpeming, in Marquette county, bought a draft of D. E. Wadsworth & Co., bankers of that place, on a Chicago bank for $475, payable to defendants’ order, which they indorsed and mailed to plaintiffs, who are New York merchants, to apply, if collected, as a payment of $500, being with $25 rebate. Plaintiffs received it to apply when paid, and sent it to Chicago, where, on the twentieth of December, it was presented and protested.
On December 24, which was Monday, the draft and notices of protest reached plaintiffs, in New York city, who mailed notice to defendants, and also telegraphed to know why the draft was dishonored. Defendants telegraphed back to return it, and they would send a new one; also that they had made a further remittance of $500.
On the twenty-ninth of December plaintiffs returned the
Defendants claim that the plaintiffs were bound to return them the draft at once, so that they could have got Wads-worth & Co. to redeem it before their failure, and that the omission to do so made them liable for the consequences. The plaintiffs’ letter of December 29 was as follows:
“ Inclosed please find protested draft, for which please give us credit for $477.91, and remit us new draft.”
The court below held that this letter showed conclusively that plaintiffs only held the draft as agents, and had no right to retain it, but should at once have returned it, and ordered a verdict for defendants.
The testimony showed very clearly that the draft had been properly dealt with by plaintiffs, and that the protest and notices were sent in due time. Upon this we do not think there is any conflict of testimony, and it seems to have been so considered in the court below. The decision went upon the ground that the plaintiffs were mere collecting agents until payment, and had not been diligent.
That they had the duties of collecting agents is true, but they were something more. There is no rule of law which requires a-person who has received a security conditionally to give it up again at one time more than another. If defendants had a right to recall the draft when protested, they had a right, on the same principle of agency, to recall it before dishonor, or to change its application. We do not so understand the authorities. It is not reasonable to deprive a holder of what he has taken collaterally, any more than of what he has taken absolutely. If a debtor wishes to get back his paper he has a right to do so by paying the debt, but not otherwise. If plaintiffs had taken this paper in absolute payment of their account, it is not very clear why they would not have had the right to hold defendants as indorsers on its dishonor, although the original account was canceled, and
There was evidence aimed at showing that New York wholesale houses had a custom of returning dishonored drafts to their debtors from whom they received them. If this testimony was admissible, the case should have been left for the jury. But there were two objections to it. The law of negotiable paper has never been allowed to be changed by local customs even more general than this, unless possibly when the paper itself is purely local. This was a foreign bill, drawn and indorsed in Michigan, and payable in Chicago. It is difficult to see how New York business usages could apply to such an instrument. And, further, no such
We can see no reason why plaintiffs could not recover either on the account or on the indorsement. The judgment must be reversed, with costs, and a new trial ordered.