Harrison v. Nicollet National Bank of Minneapolis
| Decision Date | 18 October 1889 |
| Citation | 43 N.W. 336,41 Minn. 488 |
| Parties | James T. Harrison v. Nicollet National Bank of Minneapolis |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Hennepin county, Rea, J., presiding, sustaining a demurrer to the complaint. The action was to recover $ 20,000 damages for that the defendant on April 14, 1888, and before the maturity thereof, did "falsely, wrongfully, and maliciously" cause to be protested the following instrument, which had been indorsed and forwarded to defendant for collection thereby injuring plaintiff's credit, etc.:
"45 Washington Ave. South,
HARRISON the TAILOR.
Order reversed.
Carman N. Smith, for appellant.
Woods & Kingman, for respondent.
This appeal presents the question whether a written order on a bank or banker to pay a sum of money at a day subsequent to its date, and subsequent to the date of its issue, is a "check," or a "bill of exchange," and hence entitled to grace. The question is one which has given rise to considerable discussion and some conflict of opinion. About all the law there is on it, as well as all the arguments on each side, will be found in Morse, Bank. (3d Ed.) § 381 et seq. The two principal authorities holding such an instrument a check are In re Brown, 2 Story 502, and Champion v. Gordon, 70 Pa. 474. Both of these are entitled to great weight, but they stand almost alone; the supreme courts of Rhode Island (Westminster Bank v. Wheaton, 4 R.I. 30) and perhaps of Tennessee being, so far as we know, the only ones which have adopted the same views. All other courts which have passed upon the question, as well as the text-writers, have almost uniformly laid it down that such an instrument is a bill of exchange, and that an essential characteristic of a check is that it is payable on demand. This was finally settled, after some conflict of opinion, in New York, -- the leading commercial state of the Union, -- in the case of Bowen v. Newell, (several times before the courts,) 5 Sandf. 326, 2 Duer, 584, 8 N.Y. 190, and 13 N.Y. 290, (64 Am. Dec. 550.) See, also, Morrison v. Bailey, 5 Ohio St. 13, (64 Am. Dec. 632;) Woodruff v. Merchants' Bank, 25 Wend. 673; Minturn v. Fisher, 4 Cal. 35; Bradley v. Delaplaine, 5 Har. (Del.) 305; Georgia Nat. Bank v. Henderson, 46 Ga. 487; Ivory v. Bank of State of Mo., 36 Mo. 475, (88 Am. Dec. 150;) Work v. Tatman, 7 Del. 304, 2 Houst. 304; Hawley v. Jette, 10 Ore. 31; 2 Daniel, Neg. Inst. §§ 1573-1575; Morse, Bank. supra.
Nearly every definition of a check given in the books is to the effect not only that it must be drawn on a bank or banker, but that it must be payable on demand. 1 Rand. Com. Paper, § 8; Byles, Bills, 13; 2 Daniel, Neg. Inst. § 1566; 1 Edw. Bills, § 19; Bigelow, Bills & N. 116; Chalm. Dig. Bills & N. art. 254; Shaw, C. J., in Bullard v. Randall, 1 Gray 605; Bouv. Law Dict.; Burrill, Law Dict. Occasionally the expression is used "payable on presentation," but evidently -- except perhaps in Story on Bills -- as synonymous with "payable on demand."
As the question is a new one in this state, we would not feel compelled to follow the majority if the better reasons were with the minority. Perhaps the weightiest argument in favor of holding such an instrument a check is the practical one advanced by Sharswood, J., in Champion v Gordon, supra, viz., that if held to be a bill of exchange the holder might immediately present it for acceptance, and if not accepted he could sue the drawer, or if accepted it would tie up the drawer's funds in the hands of the bank, and thus, in either case, frustrate the very object of making it payable at a future day. In answer to this, it may be said that the drawer, if he wished, could very easily avoid such consequences by inserting appropriate provisions in the instrument. On the other hand, if we hold that an instrument not payable on demand may be a check, we are left without any definite or precise rule by which to determine when the paper is a check, and when a bill of exchange. The fact that it is drawn on a bank is not alone enough to distinguish a check from a bill of exchange, for nothing is better settled than that a bill of exchange may be drawn on a banker. Neither will the fact that the maker writes it on a "blank check" be any test, for the kind of paper it is written on cannot control the import and legal effect of its words. Neither can the question whether it is drawn against a previous deposit of funds by the...
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