Allen v. Kramer

• Decision Date: 31 October 1878
• Citation: 2 Ill.App. 205,2 Bradw. 205
• Parties: JOHN ALLEN ET AL.v.MAX KRAMER ET AL.
• Court: United States Appellate Court of Illinois

2 Ill.App. 205

2 Bradw. 205

JOHN ALLEN ET AL.

v.MAX KRAMER ET AL.

Appellate Court of Illinois, First District.

October Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding

Messrs. CHETLAIN & GREGORY, for appellants; that the holder of a bill or check has a reasonable time in which to present it for payment, and as to what is a reasonable time, cited 1 Daniels on Negotiable Instruments, 448; 1 Parsons on Notes, 338; Mellish v. Rawdon, 9 Bing. 416; Nat. Newark Banking Co. v. Second Nat. Bank, 63 Pa. St. 404; Taylor v. Wilson, 11 Met. 44; Aymar v. Beers, 7 Cow. 705; Montelius v. Charles, 76 Ill. 303.

The holder does not lose his remedy against the drawer by reason of non-presentment, unless the drawer is injured by reason of the insolvency of the drawee in the interval: Story on Prom. Notes, § 493; Springfield F. & M. Ins. Co. v. Tincher et al. 30 Ill. 399; Little v. Phœnix Bank, 2 Hill, 425; Howes v. Austin, 35 Ill. 396; Heartt v. Rhodes, 66 Ill. 351; Stevens v. Park, 73 Ill. 387; Harbeck v. Craft, 4 Duer, 112; Planters' Bank v. Merritt, 7 Heisk. 177.

The burden of proof is upon the drawer to show not only non-presentment, but consequent injury to himself: Bradford v. Fox, 38 N. Y. 289; Syracuse, etc. R'y Co. v. Collins, 3 Lansing, 29.

A bank is bound to know the signature of its depositors: 2 Daniel on Negotiable Instruments, § 1,654; Weisser v. Denison, 10 N. Y. 68; First Nat. Bank of Quincy v. Richer, 71 Ill. 439.

If appellees have sustained injury by reason of appellants' laches, they are discharged from liability on the original indebtedness only to the extent of their loss by the insolvency of the drawees: Story on Promissory Notes, § 492; 2 Daniel on Negotiable Instruments, 514; Smith v. Jones, 2 Bush. 103; Pack v. Thomas, 13 Smedes & M. 11; Bradford v. Fox, 38 N. Y. 289; Henshaw v. Delors Ind. Sup. Ct.

Instructions must be based on the evidence: Weaver v. Rylander, 55 Ill. 529; Holcomb v. Davis, 56 Ill. 413; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; T. P. & W. R. R. Co. v. Patterson, 63 Ill. 304; Stein v. Kendall, 1 Bradwell, 103

There was no dispute or contradiction as to the facts in the case, and it was the duty of the court to have pronounced the law and defined the rights of the parties to the controversy: Tefft v. Ashbaugh, 13 Ill. 602; Davis v. Hoxey, 1 Scam. 406; House v. Wilder, 47 Ill. 510; Quinn v. I. C. R. R. Co. 51 Ill. 495.

Messrs. TENNEYS, FLOWER & ABERCROMBIE, for appellees; that a check is an assignment of so much money on which the payee may sue the drawer, cited Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212.

The check was drawn in this State, and its validity and interpretation must be determined by the laws of this State, the mailing of the same here being a delivery: McKinney v. Rhoades, 5 Watts, 343.

BAILEY, J.

This suit was brought by appellants, to recover the amount of a bank check given them by appellees, in payment of certain indebtedness from appellees to them. The facts upon which the liability of appellees is sought to be established, are substantially as follows:

On the 27th day of November, 1877, the date of the check, appellees were merchants, doing business in Chicago, as co-partners, under the firm name of Kramer Brothers. At the same time, appellants were engaged as co-partners, under the firm name of J. & B. Allen, in the business of manufacturing and dealing in hosiery goods, having their manufacturing establishment and principal place of business at Philadelphia, and also having a store in New York, where some of their goods were sold. Appellants both resided in Philadelphia; one of them, however, having charge of their business at that place, and the other of that at New York. The only bank account kept by the firm was with the National Bank of Germantown, and all their banking business was done at that bank.

The merchandise for which the indebtedness in question accrued, was purchased of appellants, either at their New York house, or of traveling agents in the west. It appears that customers who bought goods at the store in New York, usually corresponded with appellants at that place, and made remittances to them there. Accordingly, all the correspondence between appellees and appellants, had been carried on with the New York House, and all the remittances made by appellees prior to sending the draft in question, were sent to New York.

The balance due from appellees to appellants on the 27th day of November, 1877, being $1,006.71, appellees drew their check for that amount in favor of appellants, on Messrs. Greenebaum Bros. & Co., bankers, of New York city, with whom they then had a deposit, and sent the same by mail to appellants at New York. This check was received by the New York partner on Friday, November 30th, and was by him, on the same day, forwarded to the other partner at Philadelphia, where it was received Saturday, December 1st. It was thereupon immediately indorsed by the Philadelphia partner, and deposited in the National Bank of Germantown, and on the same day forwarded by that bank to the Central National Bank of New York, for collection. At about one o'clock in the afternoon of Monday, December 3d, the check was presented by a messenger of the last named bank, at the counter of Messrs. Greenebaum Bros. & Co., for payment. The messenger was known at the banking house of Greenebaum Bros. & Co., but the payment of said check was refused, upon the ground that the bank teller to whom it was presented was in doubt as to the genuineness of the signature of Kramer Brothers thereto.

It appears that the teller before refusing payment, took the check and showed it to David S. Greenebaum, a member of the firm, remarking that he did not recognize the signature, and asked him what to do. Mr. Greenebaum told him to return the check and he would ascertain by telegraph, whether the signature was genuine. This conversation, however, does not appear to have been in the presence of the messenger, nor is there any evidence tending to show that he was in any way advised of Mr. Greenebaum's purpose to telegraph for information in relation to the signature. On the same day, after banking hours, the check was again presented to Greenebaum Bros. & Co. by the paying teller of the Central National Bank, for the purpose of protesting it if not paid. He was informed that there was something wrong with the signature, but does not appear to have been notified of any intention to inquire as to its genuineness. The check, not being paid, was duly protested, and notice of protest given to appellees.

The evidence shows that on the first or second day afterwards, Mr. Greenebaum received information that the signature was genuine. The check, however, was not again presented for payment, nor does it appear that the Central National Bank, or other holders of the check, had any notice of the result of Mr. Greenebaum's inquiries, or of his readiness to pay the check. On the 6th day of December, Messrs. Greenebaum Bros. & Co. suspended payment and became insolvent, and so have ever since remained. At the time the check was drawn, and from thence up to the time of the failure, appellees had on deposit with Greenebaum Bros. & Co. an amount of money sufficient to pay the check.

On the trial, the jury rendered a verdict for appelle...