Anderson v. Rodgers

• Decision Date: 09 June 1894
• Citation: 36 P. 1067,53 Kan. 542
• Parties: ANDERSON v. RODGERS.
• Court: Kansas Supreme Court

36 P. 1067

53 Kan. 542

ANDERSON v. RODGERS.

Supreme Court of Kansas

June 9, 1894

Syllabus

1. The payee of a check, who falls to make presentment within a reasonable time, assumes the risk of loss occasioned by the insolvency of the drawee occurring in the meantime.

2. It is negligence in the holder of a check to send it directly to the drawee, residing in a distant place, for payment; and the holder is responsible for any loss occasioned by adopting such course.

3. The Bank of H., as the agent of plaintiff, sent a check drawn by the defendant on the Bank of R., distant about 55 miles, to the Bank of R., by mail, with the request that it remit the amount in Kansas City Exchange. The check was received by the Bank of R. on the evening of December 12th. The Bank of R continued to do business during all of the following day, receiving deposits and paying checks. On the evening of that day, after business hours, it deposited a letter inclosing the check, with the statement "No funds in bank," addressed to the Bank of H., which was received by the bank of H. on the evening of the next day. The defendant had more than funds enough on deposit to pay the check. The bank did not open for business thereafter, and has never paid anything to either party. Held, that the loss must fall on the plaintiff.

Error from district court, Hamilton county; A. J. Abbott, Judge.

Action by S. H. Rodgers against J. M. Anderson. Judgment for plaintiff, and defendant brings error. Reversed.

This action was brought on a check, of which the following is a copy: "Richfield, Kansas, Dec. 9th, 1889. Bank of Richfield pay to S. H. Rodgers, or order, two hundred and fifty dollars, to apply on lumber bill Morton county courthouse. $250.00. J. M. Anderson." The case was tried on an agreed statement of facts, which is as follows: "That on the 9th day of December, 1889, defendant was indebted to plaintiff in the sum of two hundred and fifty dollars. That on said 9th day of December, 1889, defendant executed the check, a copy of which is set forth in the petition, and delivered the same to the plaintiff through the mail. That said check was executed and delivered and received in the ordinary course of business, with reference to said indebtedness; but no special agreement was entered into as to whether it should be received as payment, or otherwise. That said check was received by plaintiff at Syracuse, in Hamilton county, Kan. That the Bank of Richfield, upon which said check was drawn, was situate at Richfield, in Morton county, a distance of about 55 miles from Syracuse, and that there was a daily mail between the two places, leaving each place at 7 o’clock in the morning, and arriving at about 7 o’clock in the evening. That, at the time of the transaction herein set forth, there was at Richfield another bank, doing a regular banking business, known as the Morton County Bank. That on the 11th day of December, 1889, plaintiff indorsed said check by writing upon the back of the same, to wit, ‘S. H. Rodgers,’ and deposited the same for collection and credit of his account, when collected, with the Hamilton County Bank, a banking institution, doing a general banking business in Syracuse, with which said bank said plaintiff did his regular banking business. That on the 11th day of December, 1889, said Hamilton County Bank indorsed said check, as follows: ‘Pay Bank of Richfield, cashier or order, for account of Hamilton County Bank, Syracuse, Kansas. Frank Bently, Cashier,’— and deposited the same in the mail in an inclosure directed to the Bank of Richfield, at Richfield, with a request that the said Bank of Richfield remit the amount of said check to said Hamilton County Bank, by mail, in exchange on Kansas City, less charge for exchange. That said check reached Richfield on the 12th day of December 1889, after business hours. That on the 13th day of December, 1889, the Bank of Richfield inclosed said check in a letter addressed to the Hamilton Bank of Syracuse, and inclosed therewith a paper, on which were written the words following: ‘No funds in bank,’— said check being deposited in the mail by the bank after banking hours. That said check was received at Syracuse on the 14th day of December, 1889, after business hours; and on the 15th day of December, 1889, plaintiff was notified of the nonpayment of said check. That on the 16th day of December, 1889, plaintiff verbally notified defendant of the nonpayment of said check, and demanded the amount thereof from defendant, and defendant refused to pay the same, or any part thereof. That plaintiff has never received the amount of said check, or any part of the same. That, at the times herein set forth, defendant had the sum of two hundred and ninety-five dollars to his credit with the Bank of Richfield, subject to check. That on the 14th day of December, 1889, said Bank of Richfield made an assignment for benefit of its creditors, and never opened for business after the 13th day of December, 1889. That said check was never charged to defendant by the Bank of Richfield, and the amount thereof was never deducted from his credit on the books of said bank, nor was any credit given to S. H. Rodgers nor the Hamilton County Bank by the said Bank of Richfield; and, at the time of the failure of the Bank of Richfield, the full amount of two hundred and ninety-five dollars was to the credit of said defendant on the books of said Bank of Richfield. That the said sum of two hundred and ninety-five dollars to his credit with said Bank of Richfield was entirely lost to defendant, and he has never received any part of the same. That said Bank of Richfield was open, doing a general business, receiving deposits, and paying money upon checks during its regular banking hours, on the 13th day of December, 1889." The court thereupon rendered judgment in favor of the plaintiff for the amount of the check.

H. R Boyd, for plaintiff in error.

Geo E. Morgan, for defendant...