Case v. Morris

• Decision Date: 01 January 1857
• Parties: Case versus Morris.
• Court: Pennsylvania Supreme Court

31 Pa. 100

Case versus Morris.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Tioga county.

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B. Townsend and St. G. T. Campbell, for the plaintiff in error. —The judge below charged as matter of law that if the jury believed the check was remitted presently after its date to the drawee, then there was undue delay in its presentation. It must be remembered that this check was to travel from Wellsboro', Tioga county, where the drawer resided, to Philadelphia, and was thence forwarded to Montrose, Susquehanna county, endorsed to the order of Henry Drinker, and from the latter place to Towanda, where the bank was, and all this to be done at a season of the year when the mails were most liable to detention and interruption. Robinson v. Ames, 20 Johns. 146; Aymer v. Beers, 7 Cow. 711. There is a well-established distinction between bank checks and bills or notes, in respect to the holder's obligation to make diligent demand and give notice of non-payment; and the distinction is, that in the case of checks on banks, some damage or loss must be shown to have accrued to the drawer from the delay, and if no such damage has been sustained by the drawer, or if he has saved or relieved himself subsequently from any loss which he might have sustained thereby, then mere delay will not relieve him from liability: Conroy v. Warren, 3 Johns. Cas. 259; Murray v. Judah, 6 Cow. 484; In re Brown, 2 Story 502; Hoyt v. Seeley, 18 Conn. 353; Daniels v. Kyle, 5 Geo. 245; Story on Prom. Notes, § 492, 947; Kent 87, 105; Cruger v. Armstrong, 3 Johns. Cas. 5; Mohawk Bank v. Broderick, 10 Wend. 306; Little v. Phœnix Bank, 2 Hill 425.

The learned judge who tried the cause below seems to have conceded the force of these authorities, but applied them to the state of facts existing at the time the check ought to have been presented, and ignored or denied the effect of the acts subsequently done by Morris, the drawer, by which we say he avoided and relieved himself from all loss or damage which he might otherwise have sustained.

Maynard and G. Mallery, for the defendant in error, cited Byles on Bills 178; 2 Greenl. Ev. § 195; Chitty on Bills 410, 411, 413, 416; Swift on Evidence 318, 293; 3 Watts 339; 21 Wend. 372.

The opinion of the court was delivered by LEWIS, C. J.

A check on a bank is so much like a bill of exchange that most of the rules of law applicable to one apply to the other: 3 Johns. Cas. 5; Chitty on Bills 12. In both cases the general rule of law is, that the holder cannot resort to the drawer without proof of due presentment to the drawee for payment, and prompt notice of dishonor: Little v. Phœnix Bank, 2 Hill's N. Y. Rep. 430. But in Bickerdike v. Bollmam, 1 T. R. 408, it was held that when the drawer had no effects in the hands of the drawee at the time the bill was drawn, notice was not necessary. It is sometimes said that this exception to the general rule is placed on the ground that it was a fraud to draw the bill when the drawer knew that it would not be paid. At other times it is said that the drawer's knowledge that it would be dishonored is tantamount to demand and notice: Cory et al. v. Scott, 3 B. & Ald. 619. But whatever may be the grounds for that decision, it is very certain that it introduced an exception to a plain and intelligible rule of commercial law, which many eminent and experienced judges have since regretted. It is adhered to on the principle of stare decisis, but it is not to be extended a single step: Orr v. Maginnis, 7 East 362; Legge v. Thorpe, 12 East 176 Rucker v. Hiller, 16 East 43; 3 B. & P. 241; 3 Barn. & Ald. 619; 6 Bing. 623. Where the drawer has no effects in the hands of the drawee, and has no reason to expect any, or to believe that the bill will be paid, notice of the dishonour of it could do him no good, and may therefore be dispensed with. On this ground, the decision in Bickerdike v. Bollman may be supported, 3 B. & Ald. 619. And the principle to be extracted from the cases is, that wherever the presentment for payment and notice of dishonour could be of no benefit to the drawer, it may be dispensed with. Apply this principle to the case before us: — The check on the Towanda Bank was drawn on the 4th December 1841; at that time, the drawer had funds in the bank more than sufficient to meet it, and the notes of the bank were received in payment of debts, and for general business purposes, although that bank, with other banks generally throughout the...