38 N.Y. 96, Place v. McIlvain

• Citation: 38 N.Y. 96
• Party Name: JAMES K. PLACE et al., Appellants, v. WILLIAM S. MCILVAIN, et al., Respondents.
• Case Date: January 01, 1868
• Court: New York Court of Appeals

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38 N.Y. 96

JAMES K. PLACE et al., Appellants,

v.

WILLIAM S. MCILVAIN, et al., Respondents.

New York Court of Appeal

January 1, 1868

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[Copyrighted Material Omitted]

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COUNSEL

Messrs. A. H. Wallis & A. B. Lawrence, for the appellants.

Mr. E. T. Gerry, for the respondents.

GROVER, J.

The principal question in this case arises upon the exception of the defendants to the refusal of the judge to direct a verdict for the defendants. The undisputed facts, upon which the request was based, were, that after the defendants were duly charged as indorsers upon the note in suit, the maker sent his check upon the Hanover bank for the amount of the note, payable to plaintiffs' order, post-dated some seven days, inclosed in a letter as follows: "I herewith inclose you my check on the Hanover bank for $490, for my note now under protest. Please keep the check, and when paid, I will call for the note. I have been disappointed today in getting the money, and of course quite short. If you will accept this, you will confer on me a very great favor, and if you have been put to any expense in consequence of not getting this money at maturity, I will re-imburse you. " That the plaintiffs received the check on the day of its date, and retained it until maturity, and then presented it for payment, which was refused; that, until after this, no communication was made by the plaintiffs to the maker in regard to the check or note, and no notice given to the latter, of acceptance or rejection of the proposition contained in the letter inclosing the check. The verdict of the jury, under the charge given, finds, that there was no express agreement by the plaintiffs to give time to the maker, and no intention on their part to retain the check as their own property until maturity; but there was no evidence to sustain such findings, except as above stated. The letter, fairly construed, contains a request by the maker, to retain the check, and give time for the payment

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of the note until maturity; retaining the check until maturity, by the plaintiffs, and then presenting it for collection, shows that they assented to such request. They were not at liberty, so to retain it, without notice to the maker, without such assent, and, after having done so, it is not competent for them to allege that they retained it for some other purpose, of which the maker had no knowledge, and to which he never...