Comer v. Dufour

• Decision Date: 05 February 1895
• Citation: 95 Ga. 376,22 S.E. 543
• Parties: COMER. v. DUFOUR.
• Court: Georgia Supreme Court

22 S.E. 543

95 Ga. 376

COMER.

v.DUFOUR.

Supreme Court of Georgia.

Feb. 5, 1895.

Collection of Check—Delay of Bank Correspondent—Discharge of Indorser.

1. Where, after the indorsement of a check by an accommodation indorser, it was cashed by a bank and duly sent for collection to its correspondent in the city where the bank upon which the check was drawn was located, and there, together with a number of other checks, was duly presented to the drawee for payment, and the runnel of the correspondent accepted in payment of all these checks a small sum of money and a check of the drawee upon another bank in the same city, which check, had it been promptly presented would have been paid, but, having been held by the runner, or the bank he represented, for two or more hours, during which time the drawee failed, in consequence of which the check last mentioned was dishonored, held, that under these facts the bank which cashed the original check could not hold the accommodation indorser liable for the amount thereof; and this is true although after the drawee's check had been dishonored the original check was reclaimed and duly protested.

2. The facts as above stated having been agreed upon by the parties, direction is given that the superior court render a final judgment in favor of the defendant.

(Syllabus by the Court.)

Error from superior court, Chatham county; R. Falligant, Judge.

Action by H. M. Comer, receiver, against Julius A. Dufour. Judgment for defendant, and plaintiff brings error. Affirmed.

Lawton & Cunningham and H. W. Johnson, for plaintiff in error.

Gignilliat & Stubbs, for defendant in error.

SIMMONS, C. J. The receiver of the Central Railroad & Banking Company (of which the Central Railroad Bank is a part) brought suit in a justice's court against J. A. Dufour, upon a check for $75, dated at Baltimore, January 9, 1892, upon J. J. Nicholson & Sons, bankers, by S. H. Brosius, payable to the order of A. M. Brosius, and indorsed by A. M. Brosius and by J. A. Dufour, which check had been protested for nonpayment. The case was submitted upon an agreement as to facts, and the justice rendered judgment in favor of the plaintiff. A writ of certiorari to this judgment was sustained by the superior court and the case remanded to the justice's court for a new trial. To this ruling the plaintiff excepted. The facts agreed on were as follows: On January 11, 1892, defendant, accompanied by A. M. Brosius, went to the Central Railroad Bank and requested the assistant cashier, Ulmer, to cash the check in question. Brosius being a stranger to Ulmer, he told defendant he could not cash the check unless it was indorsed by him. Defendant thereupon indorsed it, and it was cashed. On the same day it was forwarded by mail by the Central Railroad Bank to its correspondent in Baltimore, the Citizens' National Bank, for collection. The Citizens' National Bank received it, and acknowledged the receipt on January 14, 1892, and on the same day, about 11 o'clock, by its regular runner, presented this check, with other checks and drafts on J. J. Nicholson & Sons, to said firm for payment, the aggregate of all the checks and drafts so presented being $1,748. The runner accepted $48 in cash and the uncertified check of J. J. Nicholson & Sons on the Western National Bank for $1,700, in payment for the checks and drafts presented, the custom of Nicholson & Sons being to give their check for the hundreds, and cash for the balance, unless for any reason cash or certified check for the whole amount were demanded. The checks and drafts so presented to Nicholson & Sons, including the check in question, were canceled by them and charged up to the drawers thereof. The check book of Nicholson & Sons showed that three or four checks (including one for about $1,900 and another for about $2,200) drawn by them on the Western National Bank after the check for $1,700 was delivered to the runner of the Citizens' National Bank were paid by the Western National Bank before the $1,700 check was presented to it said check not having been so presented at any time before half-past 1 o'clock. Banking hours in Baltimore were from 9 to 3 o'clock in the day. The Western National Bank was three squares from the bank of Nicholson & Sons, and nearly seven squares from the Citizens' National Bank. It was not over five minutes' walk from the first place and ten minutes from the latter. Nicholson & Sons failed about 1:45 o'clock of said day, and the Western National Bank refused payment of the check drawn by them for $1,700. The...