119 Minn. 525 | Minn. | 1912
The complaint alleges and the answer admits the execution and delivery of the check, its indorsement and presentment for payment by plaintiff, and the refusal of the defendant bank to pay, although it had sufficient funds of the drawer on deposit with which to pay. The answer by way of defense alleges that the drawer of the check, before plaintiff presented the same to the bank for payment, ordered payment stopped, and directed defendant not to pay the same, on the ground that plaintiff obtained it from the drawer by fraud and without consideration. It is also averred that at the time the check was drawn, and for a long time prior thereto, a custom and usage prevathed between the banks and their depositors throughout the state that a bank withhold and refuse payment of a check, drawn for a part .of the amount on deposit, whenever the drawer thereof notified the bank so to do prior to the presentation of the check for payment.
This court, in Wasgatt v. First Nat. Bank of Blue Earth, 117 Minn. 9, 134 N. W. 224, held that a check is a pro tanto assignment of the funds of the drawer on deposit with the drawee bank, so that, if the bank refuses payment when it has sufficient funds of the drawer on deposit, the payee may maintain an action against the bank upon the check. Plaintiff insists that it necessarily follows that the drawer cannot stop payment, or revoke the authority of the bank to pay, for as far as he is concerned the money belongs to the
“Before demand for payment no assignment exists, no obligation has been created, no privity has grown up, and the very right of the bank to pay may be taken away by any one of a great number of occurrences; that the act of presentment and demand, before any of these occurrences has taken place, is that which creates at once, by the usage of business and understanding of all concerned, the obligation, the privity, and the appropriation, or at least the right to claim an appropriation.”
In the well considered case of Raesser v. National, 112 Wis. 591, 88 N. W. 618, by a court which, prior to the enactment of the uni
Nor can it be said that by the decisions in this state, or by deductions therefrom, it is settled law that the drawer of a check may not, before the same is presented for payment, revoke the bank’s authority to pay; hence, there is nothing to prevent the business custom and usage pleaded in the answer from controlling the disposition of the case. The general custom and usage according to which a business, as for instance that of banking, is carried on in a state becomes in the nature of a law pertaining thereto, so that parties may be said to contract with reference to it. Clarke v. Hall & Ducey Lumber Co. 41 Minn. 105, 42 N. W. 785. Mr. Justice Mitchell, in Northern Trust Co. v. Rogers, supra, with regard to the matters here involved, suggests “that this entire question is one which should be determined more upon considerations of business usages and business policy than of mere theoretical knowledge.”
Applying the rule indicated, the solution is clear, for the answer alleges that the custom and usage prevails between all banks in the state, including the city wherein is defendant’s bank, and their depositors that, before a check is presented for payment, the drawer has the right to stop payment thereof. Since a depositor of a bank may at any time, by drawing out his whole deposit, prevent payment of a check previously drawn by him, so that no claim whatever could be made by the payee against the drawee bank, we apprehend
The defendant asks us to go further and determine that a depositor may stop payment of a check after it has passed into the bands of a bona fide innocent bolder. We deem it inexpedient to discuss or determine that question on this appeal, for it is not involved in the demurrer.
This cause having been set down for oral argument in violation of rule XV, no costs will be allowed.
Order affirmed.