J. B. Lacroix & Frere v. Perley R. Eaton

• Decision Date: 05 December 1925
• Citation: 133 A. 745,99 Vt. 262
• Parties: J. B. LACROIX & FRERE v. PERLEY R. EATON. (Two cases, same title, heard together)
• Court: Vermont Supreme Court

133 A. 745

99 Vt. 262

J. B. LACROIX & FRERE v. PERLEY R. EATON. (Two cases, same title, heard together)

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 March Term, 1924, Rutland County, Willcox, J., presiding. The plaintiffs excepted. The opinion states the case.

Judgments affirmed and causes remanded.

Lawrence Stafford & Bloomer for the plaintiffs.

Marvelle C. Webber for the defendant.

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

OPINION

The action in each case is tort, founded on G. L. 6888, in each of which the plaintiffs seek to recover the amount of a postdated check. They are before us on plaintiffs' exception to the sustaining of defendant's demurrer to the complaints. The cases were argued and submitted with the case of F. E. Lovell v. Perley R. Eaton, reported in 99 Vt. 255, 133 A. 742, where the same questions were raised as here involved. The conclusion there reached is controlling. This requires an affirmance of each of the judgments below.

OPINION ON MOTION FOR REARGUMENT.

BUTLER J.

When this opinion was handed down, the plaintiffs filed a motion for reargument on three grounds.

1. That the Court erred in deciding the case on the ground that the negotiable instrument referred to in the complaint was a check and not a draft or bill of exchange, since the facts alleged show that it was a draft.

2. That the Court in its discussion ignored the second count of the complaint.

3. That the Court erred in holding that the second count does not state a cause of action under the Practice Act.

Briefs on this motion were duly filed, and the entry order has been held pending consideration of the motion.

As to the first ground, it is enough to say that the complaint challenged by demurrer declares upon a check eo nomine, and not otherwise, and the character of the instrument was raised and fully considered in arriving at the result in Lovell v. Eaton, 99 Vt. 255, 133 A. 742, which is controlling. The distinction here urged was suggested in the plaintiffs' brief, wherein this and the Lovell cases were considered together. It was therein contended by the plaintiffs that a postdated check is the same thing as a bank draft, payable on demand at or after the day of its date. And so it is, in effect. It is to be noticed that the statute under consideration does not apply to negotiable instruments generally, but is limited to checks, drafts, or orders upon a bank or other depository for the payment of money, and applies equally to each of the instruments named. It makes no difference here just how the instrument in question should be classified; it is enough that it is one covered by the statute.

As to the remaining grounds of the motion, we may say that the second count of the complaint was not overlooked, nor did it fail of consideration, in disposing of the case, but, since that count is also predicated upon the giving of a postdated check, we deemed it disposed of by what was said touching that subject.

Moreover the question now raised was not urged or considered by the court below. The additional count was filed by leave of court after the ruling upon the demurrer to the original complaint was made, with the understanding that it was to be treated as having been seasonably filed, but the record shows that "no claim was made that the additional count related to any other cause of action than under said statute and no claim was made upon any common law action for deceit or fraud," although "the demurrer was...