Strong v. King

• Citation: 1864 WL 3019,85 Am.Dec. 336,35 Ill. 9
• Parties: STRONG AND WILEY BROTHERSv.JOHN B. KING.
• Decision Date: 30 April 1864
• Court: Supreme Court of Illinois

35 Ill. 9

1864 WL 3019 (Ill.)

85 Am.Dec. 336

STRONG AND WILEY BROTHERS

v.JOHN B. KING.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

Assumpsit brought against appellants by appellee as the assignee of a certain bill of exchange indorsed to him in January, 1860, by R. K. Swift, Brother & Johnston.

Plea the general issue, to which was attached a notice that payment by the drawees would be insisted upon as a defense.

The facts are sufficiently stated by the court.

Arrington & Dent, for appellants.Waite & Towne, for appellee.

WALKER, C. J.

This was a sight draft drawn by Strong & Wiley Brothers on the Ohio Life Insurance and Trust Company, in favor of Williams & Bro. The last named firm indorsed the draft to R. K. Swift, Brother & Johnston, who indorsed the same to appellee. It was negotiated on the day of its date to R. K. Swift, Brother & Johnston, who, on the same day, sent it to Swift, Ransom & Co., of New York, for collection, and it reached them on Saturday, August 22, 1857. On that day Swift, Ransom & Co. indorsed upon the draft “received payment,” and wrote their name under the indorsement, and sent it by messenger to the Trust Company for payment. He received a check for the amount, drawn upon the American Exchange Bank, and left the draft in the possession of the company. This check was placed in the bank with which Swift, Ransom & Co. transacted their business, to go through the clearing house. On the next Monday¹ the check was thrown out, at the clearing house, and on that day the Trust Company had suspended and did not open for business.

The check was on that day returned, but the assets and papers of the Trust Company were then in the hands of the sheriff, who, notwithstanding the Trust Company were willing to return the draft, was unwilling to surrender it to Swift, Ransom & Co. Payment of the draft was demanded and refused, and the draft was then protested, and notice, by mail, was given to Strong & Wiley Brothers. On the same day Swift, Ransom & Co. telegraphed to Swift, Brother & Johnston that the Trust Company had failed, and that the draft was unpaid. It is likewise insisted that after notice of protest, appellants agreed to pay and take up the draft.

The first question presented is, whether the protest for nonpayment was in time so as to hold the drawer and indorsers. It may safely be stated as a rule that the holder of a sight bill, in order to charge the drawer and indorser, must put it into circulation or present it for payment, at the farthest, on the next business day after its reception, if within reach of the person upon whom it is drawn. Chit. on Bills, 382. Such an instrument matures when presented for payment; and if presented on the day of its reception, it is thereby matured, and if not then paid, it must be protested for nonpayment on the same day, and due notice given in order to charge the drawer and indorsers, precisely as if it had been made payable on a specified day. And such a bill, like all others, should be presented for payment by the holder or his agent during the business hours of the day. And after a bill has been presented by the holder or his agent for payment, it may be again presented by a notary public, for the purpose of making a protest for nonpayment, after business hours on the same day. Chit. on Bills, 458.

But if the holder of a sight bill presents it, and finds no one at the drawee's place of business to honor it, he may elect to consider the bill as not presented for payment, but any act evincing an election to consider it as presented for the purpose will bind the holder, and he cannot, after such election, claim that the bill was not presented for payment. Mitchell v. Degraud, 1 Mason C. C. R., 176.

The bare reception of a check from the drawee for the amount of the bill will not, ordinarily, be considered as a payment, but only as a means of payment, and this is the rule, whether the bill is surrendered to the drawee at the time of receiving the check, or is retained by the holder until payment is consummated. It may be imprudent to surrender the bill before actual payment is made, but such improvidence does not change the rule.

Although the bare reception of a check will not usually be considered as a payment, but simply as a means of obtaining payment, still it may be shown that the check was, in fact, received as absolute payment. The fact may be established by showing an express agreement to that effect, or by showing such circumstances as will satisfy the mind that such was the understanding of the parties at the time the check was taken. If the holder of the check appropriates it to his own use, by putting it into circulation, it then becomes a payment of the bill for which it was received. Or...