30 N.J.L. 284 | N.J. | 1863
At the circuit the plaintiffs had a verdict for the amount of the check sued upon, subject to the opinion of the court upon a case stated, agreed upon by the parties.
The point presented for decision is, whether the check was presented for payment at the bank upon which it was drawn in due time, so as to exonerate the holder from laches, and throw the loss occasioned by the failure of the bank before presentation upon the drawer. The plaintiffs resided and did business at Hackettstown, in Warren county, and sold the goods, for which the check was intended to pay, to the defendant at Paterson, he residing and doing business
Although the plaintiffs received the check' on the 24th October, they did not put it in circulation, or in course of transmission for presentation until a few days of the 24th November, when they had it discounted at the Hackettstown Bank. On the evening of the- 24th November, the cashier of the bank enclosed it, Avith other checks, in a letter directed to the Newark Banking Company, and put the letter in the office on Saturday, the 24th, or Monday, the 26th. It Avas received by the NeAvark Bank, in business hours, on the 27th, sent by that bank to the Mechanics and Traders Bank, in Jersey City,, on the 28th. On the morning of the 1st December, it Avas found in the Cataract City Bank, in the package received from 'the Mechanics and Traders Bank. The 29th November was thanksgiving day, appointed by the governor.
This Avas the usual route by Avhich checks on Paterson, put in the Hackettstown Bank, were collected.
A check is an instrument sui generis, in some respects resembling, and in others differing from an inland bill of exchange.
Ordinarily the draAver of a check is the principal debtor, •and the presumption is that it was drawn to pay a debt due by the draAver upon a bank or cashier having the funds of the drawer upon deposit subject to be appropriated to the use of the draAver. The drawing of a check is considered an
The payee of a check, in order to avoid responsibility for the failure of the drawee, if he resides in the same place where the drawee and drawer reside, and receives it there, should present it for payment upon the next day after he received it within business hours, if payable when he received it, unless the circumstances under which it was issued and the purpose for which the drawer drew it, and knew it was to be used, show that it was not intended to be so presented.
Where a check is issued for the benefit of the payee, by the drawer, and post dated to the time when the drawer’s debt becomes due, to enable the payee to use it in a distant place from- that where it is payable, it is to be considered, for the purposes of presentment, as if issued on the day it bears date, and is payable at sight on or after the day it bears date. Mohawk Bank v. Broderick, 10 Wend. 304; 13 Wend. 134, S. C. in Error.
The check was in the hands of the Hackettstown Bank on the day of its date, the 24th December, which had received it before that time, and discounted it for the use of the plaintiffs. Story, in his work on Notes, §-493, lays down the rule as to presentment of a check drawn at a place distant from its place of payment, as follows: The holder is bound to forward it by post to some person at the latter place on the next secular day after it is received; and the person to whom it is forwarded will not be bound to present it for payment, until the day after it has reached him by course of post.
Parsons on Notes and, Bills, § 73, says: Where the drawer, drawee, and payee of a check live in the same place, the payee
Nor need the check be sent direct to its place of payment by the bolder. It may be sent by the usual and accustomed channel of transmission. If it belong to a bank, or be left with it for collection, and the bank does not exchange directly with the bank upon which it is drawn, it may be sent to a bank with which it does exchange; and so to its correspondent bank, until it reaches the hank at which it is payable, if the route he not unreasonably circuitous. Such is the well settled usage among banks, and it is sanctioned by law. ■Such is the rule in regard to the transmission of bills, of exchange, and it seems equally applicable to checks. Any other rule would be exceedingly onerous to the holders of checks. Wallace v. Agry et al., 4 Mason 336 ; S. C., 5 Ibid. 118 ; Smith v. Janes, 20 Wend. 193.
The check was dated the 24th November. The 25th was ■Saturday.' It was transmitted on the 26th by the mail of that day, which left at one and a half o’clock p. m., received by the Newark Banking Company on the 27th November, sent by it to the Mechanics and Traders Bank on the 28th, and would, in due course of mail, be received on the 29th, but that was thanksgiving day. That bank had until the 30th to transmit it to the Cataract City Bank. It Was received there on the 1st December, as it was found in the bank on the morning of that day. The ease expressly states that the check was sent by the ordinary channel used for the collection of such paper.
As the check was to be considered as if issued on the day it bore date, and as it was transmitted by tlie usual channel for collection, in strict accordance with the rale giving a day to each collecting agent, I think the holder of the check was.
The action is founded on a check, drawn by the-defendant in favor of the order of the plaintiffs, for $341.95, in Paterson, on the 24th of October, 1860, given in payment of merchandise purchased on that day, but post dated on the-24th of November following. It was payable at the Cataract City Bank at Paterson. The plaintiffs resided in Washington, Warren county. The defendant, a resident in Paterson,, provided funds in the Cataract City Bank to meet the check before the 24th of November, and had them on deposit for that purpose when the bank failed, on the first of December.. The check did not reach the bank until the 1st of December,, when payment was demanded and refused, and due notice of dishonor given to the defendant. The Cataract City Bank .shortly afterwards -went into the hands of a receiver, and the. depositors have sustained total loss. The question presented to this court is, whether the payees or their endorsee used such-a degree of diligence in presenting the check for payment as-entitles them to recover the money from the maker. The check bears date, and was payable, on Saturday, the 24th of November, but it was not presented at the bank for payment, until Saturday, December 1st.
What is due diligence in presenting a post dated check for-payment? It was conceded, on the argument, that checks-post dated are not entitled to days of grace. Although this-check was payable on the day of its date, and if payment had been refused by the bank on that day it would have been lawfully protested, yet the holders were not bound to make the demand on that day, mercantile usage having given them at least the next business day to present it at the counter for payment. ’ Brown’s case, 2 Story 502.
The question raised in this case is, what length of time the-
The delay was attempted to be excused under the rule which has been established for regulating the transmission of notices of protest from one endorser of a dishonored note •or bill to another. That rule allows to each one day for advising a prior endorser.
But I do not see such analogy between the cases as can sanction the delay which attended the presentment of the •check in suit for payment. The right of the drawer of a check to be absolved from liability, when a loss occurs from the subsequent insolvency of the bank drawn upon, should not be made to depend upon the mode which the holder of it may adopt for obtaining his money at the counter. In all cases, a check should be presented for payment within a reasonable time. In the case of the Mohawk Bank v. Broderick, first reported in 10 and afterwards in 13 Wendell, the endorsers of a post dated check were prosecuted. A special verdict showed that the maker of the check had no funds in the bank at Albany, on which it was drawn, on the day of the date of the check, or any time afterwards; that on the day of the date the check was deposited in the
The plaintiffs sue the defendant on a. check, given by him to them for $341.95, on the Cataract Bank at Paterson. The check was in fact drawn and delivered to the plaintiffs on the 24th day of October, I860,, thirty-one days later. It was presentable for payment at the bank on the day of its date, and not before. On the day when the check was so presentable, the defendant, as the drawee, had the money in the bank to pay it, and continued to keep it there for six days thereafter, but the check was not presented at the bank until the seventh day after its date, on which day the bank failed. The check was not paid, and the money was lost. Now here was great negligence somewhere, and the party who has been guilty of it should be the loser. It could not have been the defendant, for he met every obligation which rested upon him. He had his money at the bank on the day the check was first presentable for payment, and continued it there for several days thereafter ; and the evidence is that it would have been paid, if presented, on any day between the 23d of November and the 1st of December following.
If the check had been drawn at a far distant point, and
It is a matter of no importance where the check was between the time when it was drawn and the time when it reached the bank, as no reason is furnished why it might not have been presented in due time. Neither the plaintiffs, nor any other person in whose hands they may have placed the check, had any justification for retaining it until it was too late for it to reach its destination in due time, and then .sot up that they had used the ordinary channels of transmission. The agents employed were the agents of the plaintiffs, and their failures in duty were the failures of the plaintiffs.
The check seems to have been placed in the Hackettstown Bank a few days before its date, and was there discounted; but this can make no difference to the defendant. If the default was theirs, it may be that the plaintiffs were not bound to take it up; but they seem to have done so, and now claim it as their own, and have brought their action upon it; and • they must in this suit bear the responsibility of all the delinquencies that have occurred.
The ordinary rules of commercial and mercantile law which
Verdict set aside.