F. E. Lovell v. Perley R. Eaton

• Decision Date: 05 December 1925
• Citation: 133 A. 742,99 Vt. 255
• Parties: F. E. LOVELL v. PERLEY R. EATON
• Court: Vermont Supreme Court

133 A. 742

99 Vt. 255

F. E. LOVELL v. PERLEY R. EATON

Supreme Court of Vermont

December 5, 1925

November Term, 1924.

ACTION OF TORT based on G. L. 6888. Demurrer to complaint sustained and judgment for defendant at the March Term, 1924, Rutland County, Willcox, J., presiding. The plaintiff excepted. The opinion states the case.

Judgment affirmed and cause remanded.

WATSON C. J., dissents, and thinks that since the statute is remedial and is to be given a liberal construction, it should be held to include postdated checks.

Lawrence Stafford & Bloomer for the plaintiff.

Marvelle C. Webber for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

The action is tort for the recovery of the amount of a certain check for $ 1,500 made by the defendant, and payable to the plaintiff or order. The case comes here on plaintiff's exception to the sustaining of the demurrer to the complaint.

The action is based on G. L. 6888, which provides that "Any person who makes, draws, utters or delivers a check, draft or order for the payment of money upon any bank or other depository, knowing at the time of such making, drawing uttering or delivery that the maker or drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order, in full upon its presentation, and which is not paid in full upon presentation, shall be liable to an action of tort, on this statute, to the person injured thereby and for want of property, the body of the person so making, drawing, uttering or delivering such check, draft or order may be attached."

The check in question bore date January 7, 1924, and was made and delivered to the plaintiff by the defendant December 22, 1923. The principal question raised by the demurrer is whether, as between the maker and the payee, the statute applies to a postdated check.

A postdated check is one that is made and delivered at some time prior to the day of its date. It is generally held to be payable at sight or upon presentation at the bank at any time on or after the day of its date. Morse on Banks, Vol. 1, § 389; 5 R. C. L. 515, par. 36; Mohawk Bank v. Broderick, 13 Wend. 133, 27 Am. Dec. 192. It differs from an ordinary check in that it carries on its face implied notice that there is no money presently on deposit available to meet it, with the implied assurance that there will be such funds on the day it becomes due. It is a valid instrument recognized by and subject to the Negotiable Instruments Act, G. L. 2882, 3054, 3055. It is a familiar and useful form of negotiable paper, and plays an important part in the world of commerce. Ordinarily its purpose is to obtain an extension of credit. The maker knows when he issues a postdated check that there are no funds on deposit then available to meet it, which the statute makes the essential element of the wrong for which the remedy is provided.

It is not to be believed that the Legislature intended to abolish the use of such checks, or make their use necessarily wrongful. If the statute is construed to apply to such a check, it has just that effect and would render the maker of most, if not all, such checks liable to a body action.

Without the use of language that would make such intention unmistakable, such construction should not be placed upon it. The rules of construction do not require it. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311. The statute makes the knowledge by the maker of the want of funds in or credit with the bank...