Lloyd v. Osborne

• Decision Date: 07 January 1896
• Citation: 92 Wis. 93,65 N.W. 859
• Parties: LLOYD v. OSBORNE ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 93

65 N.W. 859

LLOYD

v.OSBORNE ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1896.

Appeal from circuit court, Clark county; W. F. Bailey, Judge.

Action by George Lloyd against C. F. Osborne and another to recover for goods sold and delivered. Plaintiff had judgment, and defendants appeal. Affirmed.

On the 17th day of June, 1893, defendants, who were doing business as lumber merchants at Minneapolis, Minn., being indebted to the plaintiff for lumber, sent him, on account of such indebtedness, by letter addressed to him at Neillsville, Wis., a check for $500 on the State Bank of Minneapolis. Plaintiff had been in the habit of receiving correspondence from defendants and others through the Neillsville post office (though he lived and had his place of business at Shortville, a place about 9 1/2 miles distant therefrom, between which places there was a triweekly mail), by the letters being forwarded from the Neillsville post office, through the regular course of the mails, to the post office at Shortville, without any extra postage. The letter arrived at Neillsville June 19th. The bank failed on the 22d. If the letter had been received by plaintiff on the 19th, and forwarded the next day, it would have been received by the bank to which it was sent for presentment to the drawee bank on the morning of the 21st. The last-named bank stopped doing business at 3 p. m. the next day, at which time defendants had to their credit there a sum in excess of the amount called for by the check. The letter was forwarded from Neillsville to plaintiff at Shortville, as was the custom, at which place he received it, in due course of the mail and of his business, about the 24th day of June, and on the same day he caused it to be forwarded for collection; but it was not paid, on account of the failure of the bank. It was duly protested, and notice thereof given to the defendants. The facts appeared undisputed, as above stated, at the close of the testimony, and on such facts defendants' attorneys claimed that the check operated as payment of $500, which was the only sum involved in the action, the balance of the indebtedness having been paid subsequent to the forwarding of the check. Plaintiff's attorney moved the court to direct a verdict in his favor, which motion was granted, and the defendants duly excepted. Judgment was entered on the verdict, from which this appeal was taken.O'Neill & Marsh, for appellants.

Charles F. Grow, for respondent.

MARSHALL, J. (after stating the facts).

The defense to plaintiff's cause of action, relied upon, turns wholly upon whether plaintiff was guilty of negligence in failing to receive and forward the check for collection in time for presentation to the drawee for payment before the bank failed. If there was such negligence, plaintiff must bear the loss that would otherwise be caused to the defendants. Daniel, Neg. Inst. § 1587. The law is well settled that due care on the part of the payee of a check drawn on a bank located at a distant point, and received by him through the mails, requires him to forward it by the close of business the next secular day, at the latest, to some person or agency, for presentation to the drawee bank for payment, and that such...