217 Mass. 441 | Mass. | 1914
The first count of the declaration is upon a check signed by the defendant, payable to the order of one Hobbs and by him indorsed, and now held and owned by the plaintiff.
The result was that at the close of the day a sum amounting to the amount of the check had been transferred from the bank upon which the check was drawn to the payee of the check, that the bank held the check, that the plaintiff was responsible to the bank for the amount thereof, and that no money had been paid by the defendant.
Subsequently the plaintiff took an assignment of all the right, title or interest the bank had in and to the check “or the funds evidenced thereby or the amount paid thereon.”
The drawer of a check impliedly undertakes that when the check is duly presented the bank upon which the check is drawn will pay it out of the drawer’s funds in its hands. And under ordi,nary circumstances the drawer is not held until the check has
It is true that the drawer may stop the payment of the check, and as between him and the bank the latter in such case pays at its peril, but such an order cannot discharge the liability of the drawer to the payee or one holding under him. Where the payment has been stopped, as above stated, the relations between the drawer and the payee become the same as if the check had been dishonored and notice thereof given to the drawer. And hence the effect so far as respects the drawer is to change his conditional liability to one free from this condition, and his situation is like that of the maker of a promissory note.
The check never has been paid either by the defendant or by any one rightfully acting for it. Under the circumstances disclosed in the offer we think that as between the plaintiff and the defendant the transactions by which the check came into the farmer’s possession cannot be regarded as a payment of it so as to extinguish the liability of the defendant, but as a transfer of the check for a valuable consideration from the then holder to the plaintiff, the one ultimately liable for the error, conveying to him whatever right such holder at that time had.
Exceptions sustained.
Before Hitchcock, J. After the offer of proof by the plaintiff, described in the opinion, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.