Miller v. Farmers State Bank of Arco
| Citation | 206 N.W. 930,165 Minn. 339 |
| Decision Date | 24 December 1925 |
| Docket Number | 24,879 |
| Parties | WARREN MILLER v. FARMERS STATE BANK OF ARCO |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover upon a check. The case was tried before Boerner, J., and a jury which returned a verdict in favor of plaintiff. Defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial. Affirmed.
Acceptance of check under Negotiable Instruments Act.
1. Under the provisions of the Negotiable Instruments Act the retention by the drawee bank of a check for more than 24 hours after its presentment constitutes acceptance.
Note for antecedent debt was not payment.
2. A note given for an antecedent debt is not payment unless given and received as such; and the finding of the jury that the note in suit was not payment is sustained.
1. See Bills and Notes, 8 C.J. p. 319, § 487.
L O. Rue and Charles F. Kelly, for appellant.
Orr Stark & Kidder, for respondent.
Action to recover upon a check drawn by one Howe in favor of the plaintiff upon the defendant bank. The basis of the action is an acceptance of the check through the failure of the defendant to return it within the time fixed by the statute. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or a new trial.
On October 15, 1920, one Howe, then president of the defendant bank, mailed from Tyler to the plaintiff at South St. Paul his check on the defendant bank for $3,400. it was received by the plaintiff on October 17 or 18 and was deposited by him in the Drovers' State Bank of South St. Paul. It reached the defendant bank on October 20. It was not paid. On October 25 the defendant returned it with the statement that Howe requested its return without protest. On the same day Howe sent the plaintiff his note for $3,400, payable on demand.
The claim of the plaintiff is that the defendant by not returning Howe's check accepted it. The defendant claims that such was not the effect of the retention of the check; and, in any event, that the $3,400 note was payment.
1. The provisions of the Negotiable Instruments Act, important here, are:
G.S. 1923, § 7169 : "A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer."
G.S. 1923, § 7179 : "The drawee is allowed twenty-four hours after presentment, in which to decide whether or not he will accept the bill; but the acceptance if given, dates as of the day of presentation."
G.S. 1923, § 7180 : "Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or nonaccepted to the holder he will be deemed to have accepted the same."
In Wisner v. First Nat. Bank, 220 Pa. 21, 68 A. 955, 17 L.R.A.(N.S.) 1266, it is held that a check is a bill of exchange within the definition of the Negotiable Instruments Act (§§ 126, 185), and that the retention of a check by the bank to which it is sent beyond the 24 hours fixed by § 137 is an acceptance. Other cases support wholly or in part the views stated. Bull v. Novice State Bank (Tex. Civ. App.) 250 S.W. 232; Commercial State Bank v. Harkrider-Keith-Cooke Co. (Tex. Civ. App.) 250 S.W. 1069; State Bank v. Weiss, 91 N.Y.S. 276; Citizens Trust Co. v. Abston, Wynne & Co. 242 F. 392, 155 C.C.A. 168; Murfreesboro v. Nashville, 127 Tenn. 205, 154 S.W. 965, 45 L.R.A.(N.S.) 240, 46 Misc. 93.
There are cases opposed. We do not minimize the arguments in their support. Section 137 states a...
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