Morrison v. McCartney

• Decision Date: 31 March 1860
• Citation: 30 Mo. 183
• Parties: MORRISON et al., Respondents, v. MCCARTNEY, Appellant.
• Court: Missouri Supreme Court

30 Mo. 183

MORRISON et al., Respondents,

v.MCCARTNEY, Appellant.

Supreme Court of Missouri.

March Term, 1860.

1. A drawer of a check is not discharged by any laches of the holder in not making due presentment thereof, unless he has suffered loss or injury by the delay.

2. A., on the 2d of October, 1857, drew a check on B., a banker, in favor of C., who, on the same day, transferred the same for value to D. On the 3d of October, about two o'clock in the afternoon, the banking-house of B. suspended payment. On the 6th of October, 1857, A., who had previously instituted suits by attachment against B. to recover the amount of his deposits, compromised the same and received his deposits. The check was not presented until January 29, 1858, when payment was refused. The check was then duly protested and notice given. Held, in a suit by D., the holder, against A., the drawer, that the latter was not discharged by the delay.

3. By the forty-fourth section of the first article of the act concerning banks and banking institutions, approved March 2, 1857, all checks drawn on bankers and made payable in currency were made payable in silver and gold or the notes of specie-paying banks.

Appeal from St. Louis Circuit Court.

The facts in evidence are sufficiently set forth in the opinion of the court. The court gave the following instructions at the instance of the plaintiff: “1. The jury are instructed that the mere fact of delay in presenting for payment a check for which the holder has given a valuable consideration is not sufficient to release the drawer of such check from liability to pay the same after it shall have been presented, protested for non-payment, and notice of protest given to the drawer within a reasonable time thereafter, unless some loss was in fact caused to said drawer by such delay; and if the jury shall believe that the check here sued on was received for value by the plaintiffs, and that before the commencement of this suit said check was presented by them for payment at the banking-house of E. W. Clark & Bros. during the usual business hours of the day, was protested for non-payment, and notice of protest and that he was looked to for payment was given to said defendant the day of or the day after said protest; and they also believe that no loss did in fact result to the defendant from the plaintiffs' delaying to present said check for payment until the 29th day of January, 1858, then the plaintiffs are entitled to recover. 2. The question for the jury in this case is whether by the delay of plaintiffs in presenting said check for payment any actual loss accrued to the defendant; and if the jury believe from the evidence of the plaintiffs that no loss has in fact accrued to the defendant from the delay of plaintiffs in making such presentment, and also believe that plaintiffs were and are holders for value of the check sued on, and that said check was presented for payment, payment refused or not made, and said check protested for non-payment, and notice of such protest and that he was looked to for payment was given on the following day to the defendant, then the plaintiffs are entitled to recover.”

The court, of its own motion, gave the following instructions: “1. If the jury believe from the evidence that before the check sued on was presented for payment, the defendant had withdrawn from E. W. Clark & Bros. the entire fund against which said check was drawn, then the burden of proof is on the defendant to show that he did sustain loss by the delay of the plaintiffs in presenting said check. 2. The jury are instructed that for the purposes of this action it is wholly immaterial whether the check sued on was drawn by defendant as an individual, and upon a fund belonging to him alone, or was the check of a firm composed of said defendant and other persons doing business under the style of Samuel McCartney, and upon a fund in fact belonging to said firm. 3. If the defendant, on the 2d of October, 1857, drew the check in question upon the firm of E. W. Clark & Bros., bankers, payable in currency, in favor of H. G. Bohn & Co., for value, and said Bohn & Co. delivered it to plaintiffs for value, and on the 6th of October, 1857, the defendant withdrew or obtained the whole of his funds from said bankers, and between said 2d and 6th days of October currency depreciated in value, and said check, after defendant had so withdrawn or obtained his funds, was presented to said bankers for payment, and that payment was demanded or refused, and said check was protested for nonpayment, and that defendant was notified thereof within a reasonable time and that he would be looked to for payment, then plaintiffs are entitled to recover the amount of said check, less the amount of depreciation of currency which may have taken place between said 2d and 6th days of October, with interest thereon at six per cent. from the commencement of this suit. 4. If the jury believe that defendant drew the check sued upon, and before it was presented the defendant withdrew or obtained from the bankers the whole amount of his funds applicable to the payment thereof, and that plaintiffs were holders of the check for value, and after said funds were withdrawn or obtained from said bankers, and within a reasonable time, the plaintiffs caused said check to be presented at the bankers for payment, and that payment was demanded and refused, and that the check was thereupon protested for nonpayment, and that defendant was notified of these facts and that he was looked to for payment thereof, then the plaintiffs are entitled to recover the whole amount of the check, with six per cent. interest thereon from the commencement of this suit, unless you believe that the defendant sustained actual prejudice or damage by reason of the delay in presenting the check.”

Various instructions asked by the defendant were refused. The jury found for plaintiffs.

F. C. Sharp, for appellant.

I. A check is in legal effect an inland bill of exchange. The parties thereto have the same rights and are subject to the same liabilities as in case of inland bills. (Byles on Bills, 73; 8 Mo. 382.) The check must be presented with due diligence. A failure to do so, and to notify the drawer in case of dishonor, releases him. (28 Mo. 162.) The check must, at the farthest, be presented the day after it is drawn, if parties live in the same city. (Byles on Bills, 79, 81; Chitty on Bills, 384; Sto. on Prom. Notes, § 493; 8 Mo. 382.) The suspension of the drawees will not excuse the failure to present. (Chitty on Bills, 383; Byles, 267; 5 Taunt. 30.) The presentment in this case could have been made. The drawer did sustain loss. The subsequent withdrawal of a part or all the drawer's effects will not render him liable. (28 Mo. 162.) The court erred in excluding the testimony offered to prove still further loss. The instructions given by the court of its own motion were erroneous. The instruction declaring that if the jury find certain facts, then the defendant would be released only pro tanto, is erroneous.

Hitchcock, for respondents.

I. Mere delay to present a check not causing actual loss to the drawer, is no...