Advance-Rumely Thresher Co., Inc. v. Hess
| Decision Date | 13 July 1929 |
| Docket Number | 6468. |
| Citation | 279 P. 236,85 Mont. 293 |
| Parties | ADVANCE-RUMELY THRESHER CO., Inc., v. HESS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Edgar J. Baker Judge.
Action by the Advance-Rumely Thresher Company, Inc., against H. B Hess and another, in which defendants, by way of affirmative defense, asked for damages. From a judgment for defendants plaintiff appeals. Reversed and remanded.
M. J Lamb, of Billings, for appellant.
Belden & DeKalb and Merle C. Groene, all of Lewistown, for respondents.
On motion for rehearing the opinion heretofore rendered in this action is withdrawn and the following opinion adhering to the same conclusion is substituted therefor.
This action was brought on three promissory notes and to foreclose a chattel mortgage given to secure their payment. The notes were made August 16, 1922. Two of them matured October 1, 1923, and the other October 1, 1924.
Defendants by answer admit the execution of the notes and mortgage, and allege that the two notes payable October 1, 1923, were paid, and that a tender was made by them of the amount due on the one maturing October 1, 1924, on condition that plaintiff release the chattel mortgage. By way of affirmative defense, defendants ask for damages in the sum of $100 under section 8271, Revised Codes of 1921, and $500 general damages for failure of plaintiff to satisfy and discharge the chattel mortgage within the time provided in that section.
The affirmative allegations of the answer were put in issue by the reply. Trial by jury was waived and the cause tried to the court.
Judgment was rendered for defendants in the sum of $500, from which plaintiff appealed.
The court found that the two notes maturing on October 1, 1923, were paid and discharged, and that the note payable October 1, 1924, was discharged by the tender made by the defendants. The correctness of these findings is challenged by plaintiff for want of supporting evidence.
The evidence in support of the finding that the two notes payable October 1, 1923, had been paid was as follows: A letter was written by plaintiff at Billings and mailed to defendant Cecil L. Hess, at Denton, on September 18, 1923, as follows:
In the latter part of October, 1923, defendants secured a cashier's check from the Denton State Bank, payable to the order of the Advance-Rumely Thresher Company, and mailed it to the company at Billings, stating in the letter of transmittal: "Enclosed you will find draft as requested." The cashier's check was received by plaintiff at its office in Billings on October 29, 1923; it stamped the two notes "Paid," and mailed them to defendants at Denton. The cashier's check was deposited at the Midland National Bank at Billings for collection on the day of its receipt, but was not paid because the Denton State Bank closed on October 30, 1923.
In the absence of an agreement to the contrary, the acceptance of a check in satisfaction of an obligation is conditional upon its payment. Kalman v. Treasure County, 84 Mont. ---, 275 P. 743, and cases therein cited,
Defendants contend that the foregoing evidence discloses an express agreement unconditionally to accept the check in satisfaction and discharge of the notes.
Plaintiff contends, first, that the mailing of a cashier's check instead of a draft was not a compliance with the request contained in the letter of September 18, 1923, assuming, for the sake of argument, that compliance therewith would have operated as actual payment of the notes.
We think, for the purposes of this case, the term "draft" and "cashier's check," may be regarded as meaning the same thing. Montana-Wyoming Ass'n of Credit Men v. Commercial National Bank of Miles City, 80 Mont. 174, 259 P. 1060.
Plaintiff's next contention is that, treating the cashier's check as a draft, the evidence falls short of showing an agreement that it was accepted as unconditional payment of the notes. The fact that the notes were marked "Paid" and surrendered to the makers does not establish that the draft was accepted as unconditional payment of the notes. 22 Am. & Eng. Ency. of Law [2d Ed.], 564; Lloyd Mortgage Co. v. Davis, 51 N.D. 336, 199 N.W. 869, 36 A. L. R. 465; Little v. Mangum (C. C. A.) 17 F. (2d) 44; Cleve v. Craven Chemical Co. (C. C. A.) 18 F. (2d) 711, 52 A. L. R. 980.
A case very similar is that of National Life Insurance Co. v Goble, 51 Neb. 5, 70 N.W. 503. In that case the creditor wrote the following letter to the debtor: The debtor secured and mailed the draft as requested. The draft was received and deposited in a bank for collection on the day of its receipt and was unpaid because the bank that drew the draft closed the next day. On receipt of the draft the creditor forwarded to the debtor a renewal receipt, "by which the payment of the premium was in terms acknowledged." After stating the general rule that the acceptance of a draft is conditional payment of an obligation only, the court said: ...
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