Usher v. A.S. Tucker Co.
| Decision Date | 19 May 1914 |
| Citation | 105 N.E. 360,217 Mass. 441 |
| Parties | USHER v. A. S. TUCKER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Clarence F. Eldredge and Harold Caverly, both of Boston, for plaintiff.
Chas F. Lovejoy, of Boston, for defendant.
The first count of the declaration is upon a check signed by the defendant, payable to the order of one Hobbs and by him indorsed, and now held and owned by the plaintiff.
At the trial the plaintiff introduced the check in evidence, and offered to show the following facts: The check was given on a good consideration and was indorsed by the payee who was a holder in due course for value. As thus indorsed it came through the clearing house to the Mutual National Bank, upon which it was drawn, and in which the defendant had on deposit sufficient funds to meet it. Before it reached the bank the defendant gave notice to the bank not to pay it when presented. By some error or oversight this 'stop-payment' order was ignored and the amount of the check was charged temporarily to the defendant's account. Later the error was discovered and the amount of the check was credited back. The defendant subsequently withdrew its funds from the bank, including the amount of the check. The defendant never has paid the check, and the bank refused payment of it, of which the defendant had due notice. The plaintiff is the paying teller of the bank, and the 'charging up' to the defendant's account was his error, for which he is responsible to the bank. Under the rules of the clearing house, unless the check was returned by 1 o'clock of the day on which it came into the bank neither the plaintiff nor the bank had any right to return the check to the bank from which it came. The check was not returned within the time.
The result was that at the close of the day a sum amounting to the amount of the check had been transferred from the bank upon which the check was drawn to the payee of the check that the bank held the check, that the plaintiff was responsible to the bank for the amount thereof, and that no money had been paid by the defendant.
Subsequently the plaintiff took an assignment of all the right, title or interest the bank had in and to the check 'or the funds evidenced thereby or the amount paid thereon.'
The drawer of a check impliedly undertakes that when the check is duly presented the bank upon which the check is drawn will pay it out of the...
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