Hough v. Gearen

• Decision Date: 18 January 1900
• Citation: 81 N.W. 463,110 Iowa 240
• Parties: WARWICK HOUGH and SAMUEL J. BEALS, Receiver of the Sioux City & Northern Railroad Company, v. JOHN GEAREN, Appellant
• Court: Iowa Supreme Court

81 N.W. 463

110 Iowa 240

WARWICK HOUGH and SAMUEL J. BEALS, Receiver of the Sioux City & Northern Railroad Company, v. JOHN GEAREN, Appellant

Supreme Court of Iowa, Des Moines

January 18, 1900

Appeal from Woodbury District Court.--HON. JOHN F. OLIVER, Judge.

ACTION at law to charge the defendant as indorser of a check drawn to his order by the Northern Building Company on the Citizens' Bank, South Sioux City, Nebraska, and which was not paid by said bank on presentation. The defendant pleads that the reason for nonpayment was "that plaintiffs had negligently retained said check for several days, and failed to present the same to the bank on which it was drawn within a reasonable time after it was delivered to them." In an amendment to his answer, the defendant alleges "that if said check was presented for payment, and payment refused, as alleged in plaintiff's petition, the said check was not protested as required by law, nor was this defendant given notice in the proper manner, and within the proper time, of the dishonor of said check." The case was tried to the court, and judgment rendered in favor of the plaintiffs for the amount of the check and interest. The defendant appeals.

Affirmed.

Sullivan & Griffin for appellant.

Wright Call & Hubbard for appellees.

GIVEN J. GRANGER, C. J., not sitting.

OPINION

GIVEN, J.

I.

On the thirtieth day of July, 1895, the Northern Building Company delivered to defendant its check for one hundred dollars on the Citizens' Bank of South Sioux City, Nebraska, payable to the order of the defendant, in payment of an indebtedness to him. On July 31, 1895, the defendant, at Sioux City, Iowa, indorsed said check in blank, and delivered the same to the plaintiffs in payment of an indebtedness to them. On the same day, and at the same place, the plaintiffs for value, indorsed and delivered said check to L. G Everist, who on said day, and at said place, indorsed the same, and delivered it to the Security National Bank of Sioux City, Iowa, for collection. This bank forwarded the check by mail to said Citizens' Bank for payment. Said Citizens' Bank closed its doors and suspended business about 4 o'clock P. M., Saturday, August 3d, and it was taken possession of by the bank examiner of Nebraska, and the check returned by him to the Security National Bank without being paid, on Monday, August 5th, and by said bank it was returned to Mr. Everist. Mr. Everist returned it to his immediate endorsers, the plaintiffs, on receiving payment from them of the amount thereof. The one fact in dispute is as to when the check was forwarded to the Citizens' Bank for payment. The plaintiffs claim that it was forwarded by mail on the first day of August, while the defendant contends that it was not received until the third or fifth of that month. The evidence shows quite satisfactorily that the check was indorsed and delivered by Mr. Everist to the Security National Bank on the first day of August, and the letter of that bank transmitting the check for payment bears that date. South Sioux City, Nebraska, is only about one and one-half miles distant from Sioux City, Iowa, and four trains carry mail between these cities each day. Mail carried to South Sioux City by the latest train in the day would not be received at the Citizens' Bank until after banking hours, and it sometimes happened that mail matter for South Sioux City was carried by and returned by the ...