Cox v. Hayes
| Decision Date | 05 October 1897 |
| Docket Number | 2,150 |
| Citation | 47 N.E. 844,18 Ind.App. 220 |
| Parties | COX v. HAYES |
| Court | Indiana Appellate Court |
From the Jay Circuit Court.
Affirmed.
J. W Headington and J. F. LaFollette, for appellant.
C Corwin and J. M. Smith, for appellee.
OPINION
The court below, at the request of appellant, rendered a special finding of facts with its conclusion of law thereon, and the correctness of the conclusion is questioned by the assignment of errors. The appellant has also assigned as errors the overruling of his demurrer to the second paragraph of reply, and the overruling of his motion for a new trial.
It is urged in argument that the evidence was not sufficient to sustain the finding; but upon examination we find that the evidence, without conflict therein, sustained the finding.
The court stated the facts in substance as follows: On the 23d and 24th of November, 1894, the appellee was the legally elected, acting, and qualified treasurer of Jay county, and was engaged in collecting taxes for said county at the treasurers office in the city of Portland, in said county. On said 23d day of November, the appellant was indebted to said county for taxes in the sum of $ 191.93, and on that day at said office he asked and received of the appellee, as such treasurer, the appellant's tax receipts covering said sum, and at the same time, and to pay his said taxes, he paid over to the appellee $ 115.43 in cash, leaving a balance of $ 76.50 yet due on said taxes. The appellant then held a check drawn by the firm of Neal Bros. & Co., of said city of Portland, payable to the appellant or bearer, on the People's Bank, Portland, Indiana, and dated November 19, 1894. The appellant then and there asked the appellee to take said check for the balance of said tax receipts, and the appellee, to accommodate the appellant, then and there took said check as requested. Said firm had no money in said bank to pay said check, or any part thereof, at the time the appellant took it, or at any time thereafter, of which fact the appellee, when he took it, had no knowledge. In a short time after taking the check, and on the same day, the appellee presented it to said bank for payment, and to have the amount thereof credited on his account which he then had in said bank; and payment thereof was by said bank refused, because of no funds of said Neal Bros. & Co. in said bank. The appellee, on being informed by the cashier of said bank that there were no funds of said firm in said bank with which to pay said check, or any part thereof, requested the cashier to take the check and credit appellee's account with the amount thereof until the next day, when he, the appellee, would call at the bank and take up the check and deposit with the bank $ 76.50 in cash in place of the check; and the cashier did then and there credit the appellee's account in the bank with said sum, on the condition, and not otherwise, that the appellee would take up the check on the following day and deposit in said bank in place of said check the sum of $ 76.50. On the next day the appellee paid to and deposited in said bank the sum of $ 76.50, in place of said check, and received the check from the bank. On the day he so received the check back from the bank, he offered it to the appellant, and on that day demanded and requested of the appellant that he pay the appellee the sum of $ 76.50 and take up said check, which the appellant then refused to do, and had ever since wholly failed and refused to do. Said bank, at the time it so received the check, did not charge said Neal Bros. & Co. with the amount thereof. The appellee's term of office as such treasurer expired, and he ceased to be such treasurer, before the commencement of this action. It was further found that said sum of $ 76.50, with the interest thereon at the rate of six per cent. per annum from the 24th of November, 1894, to the date of the finding was then due and wholly unpaid from the appellant to the appellee. And the court concluded as matter of law upon the foregoing facts that the appellee ought to have and recover of and from the appellant the sum of $ 80.59.
In Morse on Banks and Banking, section 543, it is said: "The presumption is that a check is only intended as conditional payment, and if dishonored, and the holder is not guilty of laches, causing loss to the drawer, the latter is liable upon the original cause, or debt for which the check was given."
In Boyd v. Olvey, 82 Ind. 294, it was remarked:
n Born v. First National Bank, 123 Ind. 78 24 N.E. 173, it is said: "In accepting a check instead of money, the creditor dispenses with the necessity of payment in the legal mode, and the reasonable implication is that the check shall be a payment only in the event that...
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