35 Colo. 142 | Colo. | 1905
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Thereupon this action was brought hy appellee against appellant to recover the amount of the check, upon the ground that appellant had promised to pay it. The trial court submitted the case to the jury upon the theory that the cause of action stated in the complaint, setting up the foregoing facts, was based upon an implied parol promise to pay. The verdict and judgment were for the plaintiff, and the defendant appeals. .
The two chief points relied upon hy defendant below (appellant here) are: (1) that under our negotiable instrument law passed in 1897 (Session Laws 1897, p. 210) an action will not lie in favor of the holder of a check against the drawee unless and until the same is accepted or certified hy the drawee, which acceptance or certification must he in writing; and (2) that if a parol acceptance or promise to pay is binding, no such promise was established hy the evidence.
At the common law a bill of exchange payable on demand need not be presented for ■ acceptance. Indeed, strictly speaking, there is no. such thing as acceptance of a check in the ordinary sense of the term; yet by consent of the holder the drawee, bank may enter into an engagement quite similar to that of acceptance by certifying the check to be good, instead of paying it. — 2 Daniels on Negotiable Instruments (4th ed.), §1601; sec. 143 of our act. A check is a species of bill of exchange, viz, that particular kind of a bill which is drawn on a bank and payable on demand. Under our act it need not be presented for acceptance unless it contains an express stipulation to that effect. — Sec. 143.
2. It is well to observe that this is not an action to recover money lost by the fraud or wrongdoing of another, and if such were the cause of action pleaded the evidence would-not support it. The only claim made by plaintiff is that the information which the appellant gave in response to an inquiry was, in legal effect, a promise to pay the check when the same was presented for that purpose. There is no pretense that the information given was false; it is conceded that the answer to plaintiff’s inquiry on which the promise rests was true; hence there is lore sent here no element of an action ex delicto.
In thus disposing of- the case upon the ground that a promise such as is here relied upon must be in writing, we are relieved of the necessity of considering whether the mere oral statement by the drawee bank that a check drawn upon it is “good” or “all right” gives rise to an action in favor of one who parts with money upon the faith of it.