Rounds v. Smith

• Decision Date: 30 April 1866
• Citation: 42 Ill. 245,1866 WL 4673
• Parties: STERLING P. ROUNDSv.GEORGE C. SMITH et al.
• Court: Illinois Supreme Court

42 Ill. 245

1866 WL 4673 (Ill.)

STERLING P. ROUNDS

v.GEORGE C. SMITH et al.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Superior Court of Chicago; the Hon. VAN H. HIGGINS, Judge, presiding. This was an action of assumpsit, brought in the Superior Court of Chicago, on the following instruments in writing: No. 579. Chicago, September 30th, 1864. Western Marine and Fire Insurance Company: Pay L. Johnson and Co. note or bearer five thousand dollars, and charge account of S. P. Rounds, per Wheeler. Indorsed, “Good, W. S. Smith, Teller.” The other instrument was like the above, in all respects, except in amount, this being for three hundred and six dollars and seventy cents, also indorsed, “Good, W. S. Smith, Teller.”

The appellant pleaded the general issue, and with it filed the following notice:

“And the plaintiff above will hereby take notice, that the defendant above, on the trial of said cause, will show in evidence and prove as a defense to the plaintiff's cause of action, that, on the 30th day of September last past, he was indebted to the firm of L. Johnson & Co., of the city of Philadelphia, in the sum of five thousand three hundred and six dollars and seventy cents, for which indebtedness this defendant had, before then, to wit, on the first day of April, A. D. 1864, given to said L. Johnson & Co. his promissory notes, bearing date the day and year last aforesaid, for the sum of $5,306.70, in aggregate, which said notes were due in six calendar months from date, and which said notes were then, to wit, on the 30th day of September last, in the bank of said plaintiff, in the city of Chicago, and were then in the possession of said plaintiffs for collection; that said notes had been forwarded to the said bank by the said L. Johnson & Co., the payees therein named and owners thereof, for collection; that, on said 30th day of September last, this defendant had large deposits in cash then in the bank of the Western Marine and Fire Insurance Company, in Chicago, which said deposits amounted to a balance in favor of this defendant to the sum of $12,000.50 and upward.

That, on said 30th of September last, this defendant sent his book-keeper, one W. W. Wheeler, to said Western Marine and Fire Insurance Company's bank with his checks drawn on said bank for the sum of $5,306.70 (in the aggregate), and had said checks on said bank certified as good by said bank, between the hours of twelve o'clock at noon of said day (the 30th of September), and one o'clock P. M. of said day, the said book-keeper of said defendant drew this defendant's checks upon said Western Marine and Fire Insurance Co., for the sum of $5,306.70 (in aggregate), payable, etc., and took the same to said bank of the Western Marine and Fire Insurance Co., and the said bank certified upon the same, that said checks were good, in usual form and manner used by banks in certifying such checks as good, and said checks were thus in manner and form and in the usual proper form certified to by said W. M. & F. Ins. Bank Co., as good, all of which appeared in writing in and by said checks; that thereupon, and immediately thereafter, and about the hour of one o'clock of said 30th September, the said book-keeper (Wheeler), took the said checks so drawn as above, and so certified as above, to the banking house of the said plaintiffs, in the city of Chicago, and then and there delivered the same to the said plaintiffs in payment of the notes of this defendant, then and there held by the said plaintiffs for collection, to the amount of said checks. That then and there this defendant received from the said plaintiffs this defendant's aforesaid notes so paid in full by said checks.

That this defendant did then and there give into the possession of said plaintiffs, the aforesaid checks for the sum of $5,306.70 (in the aggregate), so certified as above, in full payment of said notes.

That the same was so passed by this defendant into the hands of the said plaintiffs as so much cash. And this defendant will further show and prove, that, when the said checks of $5,306.70 (in the aggregate), was so certified as good by the Western Marine and Fire Insurance Co., the said W. M. & F. Ins. Co. charged over to this defendant that amount as actually drawn by this defendant from his deposits in said bank, and that this defendant thus obtaining the said certificate from said W. M. & F. Ins. Co.'s bank as to the character of said checks, and the same were good, the said checks thereby became cash, and that the same were so considered by said plaintiffs as cash. And defendant will further show that it was only owing to the fact that said checks were certified as good by said Western Marine and Fire Insurance Co., that the same were accepted by said plaintiffs, thus accepting the said checks, so certified as above, the said plaintiffs accepted said Western Marine and Fire Insurance Co., as the party thereon responsible, and holding to the said plaintiffs, on said checks, and that, by delivering of the said checks of $5,306.70 (in the aggregate), so certified as above by said Western Marine and Fire Insurance Co., that amount of money so designated in said checks, which before that time was held in deposit by the defendant in the said Western Marine and Fire Insurance Co., thereby and from thence became and thereafter was the money of the said plaintiffs, and, by such checks being delivered to said plaintiffs, said sum of $5,306.70, the amount (called for) in said checks described in plaintiff's declaration, was duly assigned, transferred and paid to said plaintiffs as cash in full payment of said notes of this defendant for that amount, and said notes were delivered to this defendant as paid, and that from and after said checks of $5,306.70 (in aggregate), were so received by said plaintiffs (the same being so certified as good by said Western Marine and Fire Insurance Co.), this defendant had no further control over said money therein named then in deposit in said Western Marine and Fire Insurance Co.'s bank, and no interest to and in the same, and that the same from thence became, and was, and now is, the money and property of said plaintiffs, and said Western Marine and Fire Insurance Co. became, and was, and now is, the depository of the said plaintiffs of said money, and was and now are the bailees of said plaintiffs of said money called for by said checks, and said money called for by said check was, from and after the delivery thereof by this defendant to said plaintiffs, held, kept and deposited in said bank at the sole and only risk of the plaintiffs above, and without any responsibility therefor on the part of this defendant, and this defendant at the trial of said cause will further show and prove that said checks above described, which are the foundation of the plaintiffs' action, are the same and no others than the checks so certified, etc., delivered to said plaintiffs on the 30th of September last past, in payment of this defendant's notes then held by said plaintiffs, that said checks were delivered into the hands of the plaintiffs between the hours of twelve and two o'clock of said 30th day of September last, and the said plaintiffs wrongfully held and kept said checks without any presentation thereof for payment at the Western Marine and Fire Insurance Co.'s bank, for a long time, to wit: for the space of forty-eight hours after the same became the property of said plaintiffs, and after the same was delivered to the said plaintiffs by this defendant, and that by reason of the keeping and holding of said checks by said plaintiffs without presentation to said Western Marine and Fire Insurance Co., for a long time, became and was and were lost, and became and were valueless, and that, by reason of the delay on the part of the plaintiffs, and their gross and wrongful negligence in holding said checks mentioned in said plaintiff's declaration, and not presenting the same for payment to said Western Marine and Fire Insurance Co.'s bank, the said checks became and were valueless, and the money therein named was lost, and that it was owing to the delay on the part of the plaintiffs, and their negligence in...