American Exch. Nat. Bank v. Gregg

• Decision Date: 31 October 1891
• Citation: 28 N.E. 839,138 Ill. 596
• Parties: AMERICAN EXCHANGE NAT. BANK v. GREGG et al.
• Court: Illinois Supreme Court

138 Ill. 596

28 N.E. 839

AMERICAN EXCHANGE NAT. BANK

v.GREGG et al.¹

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from appellate court, first district.

Assumpsit by William M. Gregg and Charles O. Gregg against the American Exchange National Bank of Chicago upon a check drawn by C. J. Kershaw & Co. upon the defendant in favor of the plaintiffs under the firm name of Gregg, Son & Co. Plaintiffs obtained judgment, which was affirmed by the appellate court. Defendant appeals. Reversed.

Swift, Campbell & Jones, for appellant.

Bisbee & Reed and J. P. Ahrens, for appellees.

CRAIG, J.

This was an action of assumpsit, brought by appellees, Gregg, Son & Co., on a check for $7,000, which was dated June 15, 1887, drawn on the American Exchange National Bank of Chicago, by C. J. Kershaw & Co., payable to the order of Gregg, Son & Co. The declaration contained a special count on the check, in which it was averred that the bank refused to pay the check, although it had money in deposit to the credit of C. J. Kershaw & Co. when payment was demanded. The declaration also contained the common money counts and a count on an account stated. It appears from the record that the check was received by Gregg, Son & Co. on the morning of June 15, 1887, and [138 Ill. 598]11 o'clock of that morning it was presented to the bank, with a request that the bank certify the check. This being refused, about 10 minutes later the check was again presented, and a demand again made for certification or payment, which was also refused. At the close of business on the afternoon of June 14th the books of the bank showed a credit balance to the account of C. J. Kershaw & Co. of $11,401.17, and on the morning of June 15th Kershaw & Co. deposited to their credit $399,200. There was therefore sufficient funds in the bank to the credit of Kershaw & Co., as appeared from the books of the bank, to pay the check when payment was demanded, unless the bank had the right to deduct from the account of Kershaw & Co. a certain check for $256,800, which had been drawn on the bank by Kershaw & Co. in favor of D. Eggleston & Son on June 13th,-two days before. This check, on the afternoon of June 13th, was taken to the bank by D. Eggleston & Son, properly indorsed by them. The bank accepted the check, stamped it ‘Paid,’ and placed the amount thereof to the credit of D. Eggleston & Son; but the bank did not then charge the check to the account of Kershaw & Co. If the bank had charged the check to the account of Kershaw & Co., their account would have been largely overdrawn. It also appears that on the afternoon of June 14th the bank charged back the check for $256,800 to the account of D. Eggleston & Son, but the evidence fails to show any authority for this action from D. Eggleston & Son. The attorneys for appellant have argued at some length in their brief and argument filed in this court the question of fact, but, as we do not review controverted questions of fact, it will serve no useful purpose to allude to that branch of the argument further than may be necessary to pass upon the ruling of the court on the instructions to the jury. Several grounds have been urged for a reversal of the judgment, but, in the view we take of the record, but one question need be considered.

On the trial appellant requested the court to give the following instruction, which the court refused, and an exception was taken: ‘On behalf of the defendant the court instructs the jury that if the jury find from the evidence that D. Eggleston & Son kept a bank-account with defendant, and that the check of Kershaw & Co. to D. Eggleston & Son, for $256,878.18, was credited by defendant to the account of D. Eggleston & Son on June 13, 1887, such crediting of the check to the account of Eggleston & Son amounted in law to a payment of the check by defendant, and defendant had the right to charge said check to the account of Kershaw & Co. before paying the check in this suit. And if the jury find from the evidence that defendant charged back the check for $256,878.18 to the account of D. Eggleston & Son on June 14th, still the right of defendant to charge to the account of Kershaw & Co. the check for $256,878.18 before paying the check in suit would not be changed, unless the jury further find from the evidence that D. Eggleston & Son consented to the charging back of the check to their account of June 14th. The mere fact that the check for $256,878.18 was not charged to Kershaw & Co. on the books of defendant till after the check oin suit was...