The Ridgely Nat'l Bank v. Hamilton

• Decision Date: 26 March 1884
• Citation: 109 Ill. 479,1884 WL 9814
• Court: Illinois Supreme Court
• Parties: THE RIDGELY NATIONAL BANKv.PATTON & HAMILTON.

109 Ill. 479

1884 WL 9814 (Ill.)

THE RIDGELY NATIONAL BANK

v.PATTON & HAMILTON.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. C. S. ZANE, Judge, presiding.

Messrs. PALMERS, ROBINSON & SHUTT, for the appellant:

A check is a brief draft or order upon a bank or banking house, directing it to pay a certain sum of money. 2 Parsons on Notes and Bills, 57; 2 Daniell on Negotiable Instruments, 583.

The use of the words, “for account of Lewis Coleman & Co.,” indicates that the plaintiffs have no interest in the paper. They make the payees mere collecting agents for the drawers and their appointees, for whose account the money is ordered to be paid. These words deprived the paper of the negotiable qualities of a check. Munn v. Burch, 25 Ill. 40; Bickford v. First National Bank, 42 Id. 238; Brown v. Leckie, 43 Id. 497.

By electing to pursue the remedy by attachment against the debtor, the creditor is estopped from suing the bank on the check. They are bound by their election. Bigelow on Estoppel, 503; Littlefield v. Brown, 1 Wend. 398; S. C. 17 Id. 168; Morris v. Rexford, 18 N. Y. 552; Rodermund v. Clark, 46 Id. 354; Jewitt v. Petel, 4 Mich. 508; Bank of Beloit v. Beale, 34 N. Y. 473.Messrs. PATTON & HAMILTON, pro sese:

The check is negotiable. The words, “for account of Lewis Coleman & Co.,” were inserted by the drawers for their own convenience, as a memorandum, to show the purpose for which it was given. The extent of appellees' interest in it is of no possible consequence to appellant, and can not serve it as a defence. Caldwell v. Lawrence, 84 Ill. 161.

The money being on deposit, it was the duty of the bank to pay it on demand. The legal title was in appellees, because the check was payable to them. It indicated with certainty who was to receive the money, and that is all that was necessary. Daniell on Negotiable Instruments, sec. 99; Adams v. King, 16 Ill. 169.

Negotiability is not of the essence of checks, but at most, of optional quality. Story on Notes, sec. 488.

A check operates to transfer the fund to the holder, and after demand and refusal, the holder may sue the bank in his own name, and recover. Brown v. Leckie et al. 43 Ill. 497.

A banker has no right to apply money on deposit to the payment of a note of the depositor payable at the bank, without the order or check of the depositor. Wood & Co. v. Merchants' Savings, Loan and Trust Co. 41 Ill. 207.

Although the law will not permit a party to have more than one satisfaction for his debt, yet in many cases it permits him to carry on several remedies at the same time. Delahay v. Clement, 3 Scam. 201; Branigan v. Rose, 3 Gilm. 123; Palmer et al. v. Harris, 100 Ill. 276; West et al. v. Fleming, 18 Id. 248.

To constitute an estoppel there must be acts or admissions by the party inconsistent with the title or claim he proposes to set up, and there must be action by the other party upon such acts or admissions, and an injury to him by reason thereof. Smith v. Newton, 38 Ill. 230; Ball v. Hooten, 85 Id. 159. Again, before the appellant can invoke the doctrine of estoppel, it must show its officers acted in good faith towards appellees. Had they told appellees that Kimber, Ragsdale & Co. had funds on deposit sufficient to pay the check, the attachment would not have been instituted; but they denied having such funds. This was not good faith, and appellant can not take advantage of it. First National Bank of Quincy v. Ricker, 41 Ill. 439; Hefner v. Vandolah, 57 Id. 520.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

This was an action brought by Patton & Hamilton, against the Ridgely National Bank, to recover the amount of the following check:

“ The Ridgely National Bank, Springfield, Illinois:

Pay to Patton & Hamilton, for account of Lewis Coleman & Co., or order, ten hundred eighteen 23/100 dollars.

+------------------------------------+
                ¦$1018 23/100¦KIMBER, RAGSDALE & CO.”¦
                +------------------------------------+
                

Upon trial in the circuit court, without a jury, judgment was rendered for the plaintiffs for the full amount of the check, which, on appeal to the Appellate Court for the Third District, was affirmed, and the defendant appealed to this court.

The facts appearing are, that Patton & Hamilton were attorneys at law, and had in their hands for collection a claim in favor of Lewis Coleman & Co., against Kimber, Ragsdale & Co., merchants, of Springfield, Illinois; that on the 11th of January, 1883, after banking hours, the latter deposited with the bank $1061.61, and afterward, on the same day, gave to Patton & Hamilton the check for $1018.23, to pay said claim, and in the forenoon of January 12, 1883, the latter presented the check at the bank, and payment was refused. The bank, after the check was presented, in the same forenoon, applied the whole balance of Kimber, Ragsdale & Co.'s deposit to the payment of a note made by them to N. H. Ridgely & Co., which was in the possession of the bank. Immediately after the presentation and non-payment of the check, the plaintiffs gave notice of its non-payment to the drawers, and at once commenced suit by attachment against them, (Kimber, Ragsdale & Co.,) in the name of Lewis Coleman & Co., in the county court of Sangamon county, on the original demand against Kimber, Ragsdale & Co. The writ of attachment was levied upon property of the latter sufficient in amount to pay the claim of Lewis Coleman & Co. The levy was afterward released by the giving of a bond by Kimber, Ragsdale & Co., under section 15, chapter 11, of the Revised Statutes of 1874, for the payment of whatever judgment should be rendered against them in the suit. The bond was given on January 24, 1883, and on February 24, 1883, the present action was commenced. At the time of the trial of the present action in the court below, the attachment suit of Lewis Coleman & Co. was still pending in the county court.

There is a claim of right on the part of the bank to apply the deposit of Kimber, Ragsdale & Co. to the payment of the note of N. H. Ridgely & Co. against them, on the ground that the note was given for money advanced by the bank, and really belonged to the bank, although payable to N. H. Ridgely & Co. We regard that as a controverted question of fact whether the bank or N. H. Ridgely & Co. were the owners of the note, which we must take to have been found by the Appellate Court against the bank, and which we are precluded by the statute from considering, the decision of that court upon controverted questions of fact being conclusive. The same must be said, too, in reference to the claim of there having been a previous agreement or understanding between the bank and Kimber, Ragsdale & Co. that the deposits of the latter should be applied to the payment of the notes of N. H. Ridgely & Co. Clearly, a banker has no right to apply money on deposit to the payment of a note of the depositor payable at the bank, without the order of the depositor. Wood & Co. v. Merchants' Savings, Loan and Trust Co. 41 Ill. 267.

The only legal questions which we find to be presented for our determination, are in respect of the character of the paper writing sued on, and the legal effect of the bringing of the attachment suit by Lewis Coleman & Co.

It is denied by the defendant that the instrument sued on is a check. Whether we take the definition of a check as given by Parsons, ...