Drovers' Nat. Bank of Union Stock-Yards, Illinois v. Anglo-American Packing & Provision Co.

• Decision Date: 15 May 1886
• Citation: 117 Ill. 100,7 N.E. 601
• Court: Illinois Supreme Court
• Parties: DROVERS' NAT. BANK OF UNION STOCK-YARDS, ILL., v. ANGLO-AMERICAN PACKING & PROVISION CO.

117 Ill. 100

7 N.E. 601

DROVERS' NAT. BANK OF UNION STOCK-YARDS, ILL.,

v.ANGLO-AMERICAN PACKING & PROVISION CO.

Supreme Court of Illinois.

May 15, 1886.

Appeal from First district.

Sleeper & Whiton, for appellant.

Page & Booth, for appellee.

SCHOLFIELD, J.

Assuming, first, that appellant is not chargeable with knowledge of the existence of any other bank than that of Rice & Messmore, at Cadillac, Michigan; and, second, that all the information it had, or could reasonably obtain, at the time, in respect to the financial standing of Rice & Messmore, was that they were solvent,-were Rice & Messmore suitable agents to whom to transmit the certified check for collection after it was placed by appellee in appellant's possession? We do not think it is of much consequence whether appellant took the check as a payment on account, or for the purpose merely of collection; for, in either view, it is entitled to show that the check, if it has discharged its duty by an effort to collect it, has availed nothing. Nor do we regard the evidence that certain banks in Chicago were in the habit of transmitting checks drawn on other banks, to those banks for collection, as affecting the present question. That evidence hardly comes up to the requirement of this court in regard to proof of a common-law custom, as laid down in Turner v. Dawson, 50 Ill. 85, and subsequent decisions of like import; but if it did, that custom does not include cases in which certified checks are sent for collection to the banks by which they are certified. In the cases to which the evidence relates there is no primary liability on the part of the bank to which the check is sent; but in the case of a certified check the bank is primarily liable for its payment. So far as affects the present question, its position is precisely what it is where it makes its promissorynote, bond, or other evidence of original indebtedness. Bickford v. First Nat. Bank, 42 Ill. 242et seq. The same person cannot be both debtor and creditor at the same time, and in respect of the same debt. How, then, can he who is debtor be at the same time, and in respect of the same debt, the disinterested agent of the creditor? Can it be said to be reasonable care, in selecting an agent, to select one known to be interested against the principal,-to place the principal entirely in the hands of his adversary? The interest of the creditor, when his debt is failing, is that steps be taken promptly, and prosecuted with vigor, to collect his debt. But at such a time the inclination of the creditor quite often, and, it may be, sometimes his interest, too, is to procrastinate. The debtor may often be interested in bringing about a compromise with his creditors whereby his debts may be discharged for less than their face. But the creditor whose debt can all be collected by legal proceedings can never be interested in producing that result. Surely it could not be held reasonable care and diligence, in an agent holding for collection the promissory note given by one individual to another individual, to send the promissory note to the maker, trusting to him to make payment, delay it, or destroy the evidences of indebtedness, and repudiate the transaction, as his conscience might permit. If this would not be held to be reasonable care and diligence, why should the same conduct be held to be reasonable care and diligence when applied to a bank?

It is to be borne in mind, appellant was not compelled to accept this check for collection. It assumed the burden voluntarily, and it ought to have known that the...