112 Ky. 310 | Ky. Ct. App. | 1901
Lead Opinion
Opinion op the cottbt by
Reversing.
This action was instituted -in the Mason circuit court by the appellant on the 30th of August, 1900. It appears, that E. H. Roden, as the administrator of Anthony Weiand,,
The contention of appellee is, in effect, that the giving of the check of decedent was an appropriation of the $199' ■for the benefit of the payee; and that notwithstanding the
The case of Deatheridge v. Crumbaugh was decided by the superior court. It appears in this case that George W. Lewis was indebted to appellee, Mrs. Crumbaugh, in the sum of $1,000; and on the 25th of January, 1885, he executed and delivered to her a check for $550 on the First National Bank at Georgetown, which check she did not present to the bank for payment until February 4th. In the meantime, to wit, January 27th, the appellant caused attachments to be issued and served upon the bank, thereby attaching the sum in the hands of said bank due by the bank to George W. Lewis, deposited therein. The amount
It will be seen from the foregoing that the decisions relied on by appellee are not conclusive of the question involved in the case at bar.
As before stated, it is the contention of appellant that the death of the drawer of the check, as matter of law, countermanded or revoked the authority of the drawee to
It was held by the supreme court in Tramell v. Bank, 11 Ky. Law Rep., 900, that a check is simply a written order of a depositor to his bank to make a certain payment. It is executory, and as such it is, of course, revocable at any time before the bank has paid, or committed itself to pay. It is further státed in the opinion that a check is an assignment of the funds of the drawer to the amount of the check, w'hich assignment is complete upon the presentation of the check; and, if the bank improperly refuses payment, that the holder may sue the bank is a well settled law of this State. But the check is no assignment to the bank until notice is given to it. The drawer may, in the interim between the delivery to the payee and its presentation for payment, draw his deposit from the bank and place it to the credit of another person, or incumber it so as to defeat the check; and we can, therefore, see no good reason why, as between the immediate parties to the check (where innocent parties are not affected), the drawer may not revoke or countermand it.
We are referred to the decision of the Illinois supreme court which held that the drawer of a check can not revoke payment, and that the bank, if it had the funds, must, pay it when presented. But it seems to us, both upon principle and the decided weight of authority, that the risk is the other way. Morse, in his work on Banks and Banking (section 397), referring to the Illinois case with disapproval, says: “The current of authority is very strong to the effect that the drawer may countermand.” 1 Morse, Banks, sec. 398, in discussing the question under consideration, says: “The remark once fell from Judge Story, in the oft-cited Matter of Brown, that the drawer of a check
The case, of Dana v. Bank, 13 Allen, 445, 90 Am. Dec., 216, conclusively settles the question 'adversely to the contention of appellee. It will be seen in the case at bar 'that before the check became payable, and before presentation, the drawer died, and that the check was for $360, and the only, amount of money in the bank due to the drawer wa.s $199. And it is averred in the petition that on the 21st of August, at the time the check was presented, the plaintiff notified the bank of the death of the drawer and forbade the payment of the check, and that the appellee bank protested the check, but afterwards paid the $199 thereon, and afterwards plaintiff drew the check upon the bank, which the bank refused to pay. The right of the bank to refuse to pay a check drawn for a larger sum than it has funds of the drawer seems to be admitted and sustained by all the authorities. The bank in this case exercised that privilege, but afterwards undertook to revoke its action and pay part of the check. We think it clear that the bank has no such authority. The gréat weight of authority seems to be that the drawer may at any time revoke tlie payment of a check before Its presentation and demand for payment. The decided weight of authority is that the death of the drawer operates as a revocation of the check; but, if the check be paid by the bank before notice of the death of the drawee, it seems that the payment will be held valid. It may also be well to remember that the giving of a check does not pay or ex
It results from the foregoing that the court erred in sustaining the demurrer to the petition. Judgment reversed and cause remanded, with direction to overrule the demurrer, and for proceedings consistent herewith Whole court sitting.
Dissenting Opinion
Dissenting opinion by
In the disposition of this case the court should have followed the rule (and the deductions which necessarily followed it) enunciated in Lester & Co. v. Given, Jones & Co., 8 Bush, 357, and reaffirmed in Weinstock v. Bellwood, 12 Bush, 139. In these cases the court held that a check is an absolute appropriation of so much money in the hands of the banker to the holder, to remain there until called for, and can not after notice be withdrawn by the drawer. As between the drawer and the holder of the check the appropriation is absolute, but the lavr will not allow the bank to suffer, before notice, that the check has been withdrawn
This court has heretofore followed the doctrine of Daniels on Neg. Instruments, and I am of the opinion that it is the correct one.