Stevens v. A. Leonard Park.

• Decision Date: 30 September 1874
• Citation: 73 Ill. 387,1874 WL 8998
• Parties: WILLIAM STEVENSv.A. LEONARD PARK.
• Court: Illinois Supreme Court

73 Ill. 387

1874 WL 8998 (Ill.)

WILLIAM STEVENS

v.A. LEONARD PARK.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was a suit originally brought before a justice of the peace, by Stevens against Park. The defendant claimed a setoff upon a bank check for $200, drawn by the plaintiff in favor of A. L. Park, upon which there was $100 paid. The court below gave judgment in favor of the defendant for $12.72 and costs, and the plaintiff appealed.

Mr. F. W. S. BRAWLEY, for the appellant.

Mr. NELSON MONROE, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The only question discussed in the present case is, was the burden on the holder of the bank check of showing that no damage had accrued to the drawer by his omission to give notice of the non-payment of the check?

It was held in Howes v. Austin, 35 Ill. 396, and M. and F. Insurance Co. v. Fischer et al. 30 Id. 403, cited in appellee's brief, that, as between the holder and the drawer, a demand, at any time before suit brought, is sufficient, unless it appears that the drawee has failed, or the drawer has, in some other manner, sustained injury by the delay; but in neither of those cases was it decided, nor was the question before the court, upon whom the burden of making proof is, in the first instance, cast. In Willets v. Payne, 43 Ill. 433, it was, however, expressly held, the burden is on the holder to show that no loss accrued to the drawer, through his delay in giving notice of the non-payment of the check.

The acceptance of the check by the holder was not an absolute payment of the drawer's debt; it was, however, a conditional payment. Story on Bills, § 419; Smith v. Miller, 43 N. Y. 173. It was presumptively drawn on a previous deposit of funds, and was an absolute appropriation of so much in the hands of the bank, to remain there until called for. Story on Promissory Notes, § 489; Little v. The Phenix Bank, 2 Hill, 427; Conger v. Armstrong, 3 Johns. Cases, 5; and Conroy v. Warren, Id. 259. Although the holder of the check did not, by the mere act of delay, lose his right of recourse on the drawer, still it was his duty to present the check for payment within a reasonable time, and give notice to the drawer of its dishonor within a like reasonable time; and if he failed to do so, the delay was at his peril. Story on Promissory Notes, § 492. By his omission he...