Saylor v. Bushong

• Decision Date: 17 April 1882
• Citation: 100 Pa. 23
• Parties: Saylor <I>versus</I> Bushong.
• Court: Pennsylvania Supreme Court

100 Pa. 23

Saylor versus Bushong.

Supreme Court of Pennsylvania.

February 27, 1882.

April 17, 1882.

February 27th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Berks county: Of January Term 1881, No. 176.

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J. H. Jacobs and Samuel L. Young (C. H. Ruhl with them), for the plaintiff in error.—An acceptance of a check may be either express or implied. The settlement between Yeich and the bank, whereby the former relinquished all claim to the amount of the outstanding check, and the bank retained the same, amounted to an implied acceptance by the bank, which entitled Saylor to sue the bank in his own name: Fogarties v. Bank, 8 Am. L. Reg. (O. S.) 393. The promise, being based on the consideration of the bank's retaining the money, need not be made immediately to the plaintiff, or even communicated to him, being founded on privity in law: Blymire v. Boistle, 6 Watts 184; Dutton v. Poole, 2 Levinz 210; Stoudt v. Hine, 9 Wr. 30; Townsend v. Long, 27 P. F. S. 143; Justice v. Tallman, 5 Norris 147; Merriman v. Moore, 9 Norris 78. We were entitled to recover under the count for money had and received. The assent of the defendants to retain the amount of the Saylor check was after it had been presented to them. This was evidence of privity of contract, and should have been submitted to the jury.

Jeff. Snyder and Geo. F. Baer, for defendants in error.— The defendants' liability was to Yeich, and the fact that at his request a note was given him for only a part of his claim, is no evidence of a promise on their part to pay the remainder to Saylor. They remain liable to Yeich, and a payment to Saylor would not be a defence in a subsequent action by Yeich. The latter's bank-book still shows a balance due him, for which he may, at any time, bring suit. The transaction between the bank and Yeich, not communicated to Saylor, created no liability of the bank to Saylor, and he, as the mere payee of the check, had no right of action in his own name against the banker.

Mr. Justice TRUNKEY delivered the opinion of the court, April 17th 1882.

It may be regarded as settled that the holder of a check cannot maintain an action in his own name against the drawees, though they have sufficient funds of the drawer, if they refuse to accept it: Bank of the Republic v. Millard, 10 Wallace 152; Carr v. The Bank, 107 Mass. 45. A check may be revoked before presentment by the drawer's death, or by his order not to honor it, but if not revoked, it is the duty of the bank to pay on demand. For breach of this duty, the drawer has a right of action. If the check has not been revoked, by common usage, the holder expects it will be paid on presentment. He may suffer a real injury by refusal, for which he may be without redress, as in case of the drawer becoming insolvent before recourse to him could be effectual. It would seem that the holder ought to have a remedy against the bank for a wrongful refusal of payment, arising from an implied promise from the usages of business, or the course of dealing between the parties; and so it was held in some cases prior to Bank v. Millard. If the bank, in violation of its duty, dishonors a check, the holder may be injured quite as much as the drawer, and the bank ought to be answerable to each party injured by breach of the contract. Prior to acceptance, it is said, there is no privity between the holder and the bank, and, therefore, the holder cannot maintain an action.

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