Willetts v. R. C. Paine.

• Decision Date: 30 April 1867
• Parties: WELLS WILLETTSv.R. C. PAINE.
• Court: Illinois Supreme Court

43 Ill. 432

1867 WL 2632 (Ill.)

WELLS WILLETTS

v.R. C. PAINE.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Superior Court of Chicago.

This was a suit brought on a check dated Niles, Michigan. May 8, 1861, drawn by R. C. Paine on E. I. Tinkham & Co., Chicago, for $450, payable to St. Joseph Iron company, and indorsed to A. W. Tipton, and by him to J. L. Hartson, at New Boston, Ill., and by him to Wells Willetts. The check was protested for non-payment June 4, 1861. The evidence is stated in the opinion of the court.

The trial in the court below resulted in a judgment for the defendant. The case is brought to this court by appeal.

Messrs. HURD, BOOTH & KREAMER, for the appellant.

Messrs. E. G. ASAY and R. S. WILSON, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought by the assignee of a check drawn in Niles, Michigan, upon E. I. Tinkham & Co., of Chicago, bearing date May 8, 1861, and protested for non-payment. The suit is against the drawer. The check was declared upon as a bill of exchange. It was not presented for payment until twenty-five days after it was drawn, during which time the drawees failed. E. I. Tinkham was called as a witness, and proof was made by him, that when the check was drawn the drawer had on deposit only Illinois bank bills, worth at that time from fifty to ninety cents on the dollar. It does not, however, appear when this amount was deposited, or that, at the time of the deposit, these funds were depreciated. It does appear, that Paine, the drawer, had been a depositor with the bank for several years, and that the balance standing to his credit at the date of the check, and until the failure of the bank, was larger than the amount of the check. Tinkham means, that if the check had been presented in due season he would have paid it only in the depreciated Illinois currency, and this is relied upon as entitling the plaintiff to recover, notwithstanding the laches in the presentation. But there is nothing in this record to show, that the bankers would have had the right to pay in depreciated funds, since it does not appear, that the funds were depreciated when deposited. If they were not, then, as decided in the case of The Marine Bank v. Chandler, 27 Ill, 525, the drawer would have had the right to insist on payment in current funds. The plaintiff is here insisting on holding the drawer. On the face of the check and protest the drawer is discharged by the delay. The burden, then, is on the plaintiff, of showing that no loss accrued to the drawer through such delay; and to do this he must show, not merely that the funds on deposit were depreciated at the date of the check, but that they were depreciated at the time of deposit, and that therefore the drawer had no right to draw the check or to expect its payment in par or current funds. The court below instructed the jury in conformity with these views. The instruction prepared by the court, and given on its own motion, was as follows:

“As the plaintiff in this case claims to recover upon the instrument sued upon as a foreign bill of...