Phoenix Ins. Co. v. Gray

• Decision Date: 28 April 1865
• Citation: 13 Mich. 191
• Court: Michigan Supreme Court
• Parties: The Phoenix Insurance Company v. George Gray, administrator, etc

13 Mich. 191

The Phoenix Insurance Company v. George Gray, administrator, etc

Supreme Court of Michigan

April 28, 1865

Heard April 8, 1865

Error to Wayne circuit.

The facts sufficiently appear in the opinion of the court.

Judgment reversed, with costs, and a new trial granted.

Douglass & Andrews, for plaintiff in error:

As to the degree of diligence required of the holder of a draft in presenting it for payment, see Merritt v. Todd, 23 N. Y., 28; Smith v. Janes, 20 Wend. 192; Allen v. Suydam, 19 Wend. 368; 20 Id. 321; Mohawk Bank v Broderick, 13 Wend. 133; Straker v. Graham, 4 M. & W., 721; Dumont v. Pope, 7 Black 367; Brady v. L. M. R. R. Co., 34 Barb. 249; Vantrot v McCulloch, 2 Hilt. 272; Linville v. Welch, 29 Miss. 204; 2 Archbold's Nisi Prius, 116, 66.

Charles I. Walker, for defendant in error:

Were there any facts in this case tending to show that the holder acted with reasonable diligence so that the question could properly go to the jury?

The court held on the former hearing that no such facts then appeared, and that the question had really been submitted to the jury as one of law, and law books read to them to aid them in their conclusion: 11 Mich. 512.

The peculiar character of the draft, payable in "current funds," might well raise a question as to the kinds of funds in which it was payable, and make them hesitate as to its disposition: 1 Parsons on Notes, 46, note.

They sought the instruction of Allen as they might well do.

Whether the delay of eleven days before writing him a second time was unreasonable, is exactly the question, depending upon judgment and discretion, upon which the jury ought to pass.

Even when the courts have undertaken to determine this as a matter of law, they have acted upon facts slighter than those proved in this case: Muilman v. D'Eguino, 2 H. Bl., 565 Goupy v. Harden, 7 Taunt. 158; Mellish v. Rawdon, 9 Bing. 416; Godfrey v. Coulman, 13 Moore P. C. C., 11, cited in 24 Law Rep., 683; Robinson v. Ames, 20 John. 150; Gowan v. Jackson, 20 John. 175; Aymar v. Beers, 7 Cowen 705; Wallace v. Agry, 4 Mason 336; 5 Mason 118; Bolton v. Harrod, 4 Martin La., 555.

OPINION

Campbell J.:

This case was before us and decided upon points resembling those now under consideration in Phoenix Insurance Company v. Allen, 11 Mich. 501. It was there held that retaining a draft on Chicago which had been received upon a claim for twenty-one days without taking any steps to collect or realize it, was, unless excused, an unreasonable delay whereby the holder must be deemed to have made it his own, and barred his remedy upon the claim itself.

The case now comes up on a state of facts introduced in evidence to account for the delay, and which as presented by the plaintiff below, is as follows: Allen, who resided at Grand Rapids, having a disputed claim against the Phoenix Insurance Company upon a fire policy, agreed to take in settlement a draft on the company's agent at Cincinnati, payable in "Chicago exchange," for $ 1,106 25/100. This draft, dated April 20, 1861, he indorsed to the firm of Stephens & Beatty, of Detroit, who agreed to collect it and apply the proceeds as far as necessary to the payment of a debt of between $ 400 and $ 500, due them by Allen, and account to him for the rest.

Stephens & Beatty sent the draft to their agents at Cincinnati, who received for it a bill on Chicago drawn by G. H. Bussing & Co., payable "in current funds" to the order of R. H. & H. M. Magill, general agents of the Phoenix Insurance Company, and indorsed by them. This last bill on Chicago was received by Stephens & Beatty, on the 3d or 4th of May, and transmitted by them to their agents in Chicago on the 25th of May. On the 27th it was presented and dishonored, and due notice was given to the indorsers. During all this time there were daily mails from Detroit to Grand Rapids and Chicago, the usual time being to the former place about seven hours, and to the latter about twelve or thirteen hours.

To explain the delay in the transmission of the bill for presentment, evidence was introduced to show that Stephens & Beatty, on the 4th day of May, wrote to Allen,...