Aebi v. Bank of Evansville

• Decision Date: 31 January 1905
• Citation: 124 Wis. 73,102 N.W. 329
• Parties: AEBI v. BANK OF EVANSVILLE.
• Court: Wisconsin Supreme Court

124 Wis. 73

102 N.W. 329

AEBI

v.BANK OF EVANSVILLE.

Supreme Court of Wisconsin.

Jan. 31, 1905.

Appeal from Circuit Court, Rock County; B. F. Dunwiddie, Judge.

Action by Albert Aebi against the Bank of Evansville. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff, a farmer residing about five miles from Evansville, kept account in defendant bank. It was accustomed to receive checks payable to his order upon the faith of his indorsement, and credit them to him as cash, and collect them without charge, and in case of dishonor to charge the checks back to him on his account. On September 14, 1901, plaintiff received a check dated August 31, 1901, from one Speich, a cheese dealer at Brodhead, upon the bank at that city, 17 miles distant from Evansville, with daily mail between these places. This check, on September 21st, he indorsed and deposited with the bank, and was given credit for it as cash. The defendant on the same day mailed it to the Brodhead Bank for payment and remittance; heard nothing from it, and gave no further attention to it for about 10 days, when a card of inquiry was sent, to which no reply was received. After waiting several days longer, defendant's cashier telephoned to the Brodhead Bank, and learned that no such check had been received; and waited still several days, and telephoned again, receiving the same information. It was proposed that the Brodhead cashier ask Speich for a duplicate. Not until October 19th did defendant notify the plaintiff that the check was not paid. Then the assistant cashier asked him to apply to Speich for a duplicate, which he consented to do when opportunity presented. He accordingly saw Speich on the 21st of October, who wrote out a duplicate check, payable to plaintiff, dated same as former, marked “Duplicate,” and with notation, “Original not payable,” and mailed it to defendant. On the following day the defendant wrote to plaintiff “to call and sign check when in town.” On October 25th he called, and, at the request of the defendant, wrote his name on the back of the duplicate check. The check was then sent to the Brodhead Bank, reaching there October 26th, and was refused, Speich having about that time absconded, leaving a bank balance of about $400, which was absorbed by the Brodhead Bank by charging up a note to him. During the time from September 21st to October 26th Speich persistently had a balance at the Brodhead Bank, except for a day or two, when there was a few dollars overdraft, and seems to have been in good credit in that bank, for they discounted his note on one or more occasions. The balance was usually less than the amount of his check, but frequently only by a few dollars. On several days, however, between September 21st and October 19th, the balance exceeded the amount of the check, to wit, on October 1, 3, 9, 10, 14, and 17th. During that interval, to wit, on September 28th and October 25th, the defendant twice balanced up plaintiff's passbook containing the credit for this check, and showing a balance in his favor made up in part thereof; but on the 28th of October wrote plaintiff that the check was dishonored, and Speich had run away, saying, “Please call at bank and attend to same.” On November 12th defendant charged up in plaintiff's account and on his passbook the amount of said check. On the following day plaintiff presented a check for the exact balance which would be to his credit without charging up said Speich check, and demanded payment thereof, which the bank refused, offering to pay him the balance after deducting the Speich check. This action was brought to recover such entire balance. The court found the facts substantially as stated, and, as conclusions of law, that the check upon its deposit became the property of the defendant, and that the failure of the bank to present for payment and notify plaintiff had discharged him as indorser. The court seems to have refused to pass on the effect, by way of waiver, of plaintiff's indorsing the duplicate check on October 25th, for the reason that no waiver was pleaded. Judgment was entered for plaintiff for the amount demanded, from which the defendant brings this appeal.Richmond & Richmond and F. J. Lamb, for appellant.

Thomas Luchsinger and J. L. Sherron, for respondent.

DODGE, J. (after stating the facts).

We have no doubt of the correctness of the court's finding of fact that by the general indorsement of the check in question its acceptance by the bank, and the credit of the amount as cash to the plaintiff in his general account to be checked against as he saw fit, with nothing to qualify the effect of such acts, the bank became the owner of the check, as distinguished from a mere agent to collect the same on behalf of the plaintiff. All of the acts above recited prima facie indicate the discount and completed transfer of the check. 2 Morse, Banks & B. § 573; Shawmut Bank v. Manson, 168 Mass. 425, 47 N. E. 196;Taft v. Bank, 172 Mass. 363, 52 N. E. 387;Burton v. U. S., 25 Sup. Ct. 243, 49 L. Ed. 482. Only by clear evidence could a contrary significance be accorded them. There is no such evidence sufficient to constitute a clear preponderance such as would be necessary to warrant us in disagreeing with this finding. Such being the transaction, the right of the defendant to charge back the amount of this check or to collect from the plaintiff, is only that resulting from the relation of indorsee and indorser. The rules governing that relation are familiar, and largely now codified in our Negotiable Instrument Law of 1899, p. 681, c. 356. In order to charge indorser upon a check or inland bill of exchange payable on demand, presentment must be made by the holder within a reasonable time after it comes to his possession. Section 1684-2. Such reasonable time is not fixed by statute, but by consensus of authority, in absence of special circumstances of excuse, is limited to the next business day, or, if the bank upon which the check is drawn is at another place, the check must be forwarded to the place of payment on the next business day, and presented at latest upon the day following its receipt at the place of payment. Gifford v. Hardell, 88 Wis. 538, 60 N. W. 1064, 43 Am. St. Rep. 925;Lloyd v. Osborne, 92 Wis. 93, 65 N. W. 859;Grange v. Reigh, 93 Wis. 552, 67 N. W. 1130. The check in question never was presented for payment until October 25th or 26th, and clearly, by such delay, the indorser was discharged, unless such delay was excused. The only excuse suggested is the loss of the check. If it be conceded that the defendant was guilty of no negligence in adopting the United States mails as a method of transmission, nor in sending the check direct to the bank upon which it was drawn, thus taking chances of acquiring prompt knowledge whether it was honored or dishonored when it reached the payee, nevertheless it is excused from making presentment and demand only so long as, consistently with reasonable diligence, it was prevented by the loss of the check. Section...