Page images
PDF
EPUB

57, 486

Copyright, 1888,
By John T. MORSE, JR.

UNIVERSITY Press:
John Wilson AND Sox, CAMBRIDGE.
CHAPTER XXXI.

PRESENTMENT OF CHECKS FOR PAYMENT.

$ 420.

ANALYSIS.
Notice OF DISHONOR, § 428. See a condensed statement of the gen.

eral law of presentment, $S 258, 259.
A. PERIOD OF PRESENTMENT.

The fundamental rule is, that presentment must be made within a

reasonable time under all the circumstances. $ 421.

In the absence of agreement or special circumstances, usage, now

recognized as law, has fixed the rule that presentment must be made within banking hours of the first business day Standard following the delivery of the check, if the bank is in period. the place where the payee lives or does business; if not in the same place, then the check must be forwarded for collection upon the business day following the day of receiving the check. If a check is received on Sunday, or other non-secular day, then

the business day following is considered the day of receipt.

SPECIAL CIRCUMSTANCES § 421 i. (1) Hastening

(a) If the payee knows that the drawee bank is in a failing

condition, it is his duty to present as soon as, by ordinary

diligence, is possible, and not to wait till the next day.

(b) An agent for collection must present the check the same § 421 a.

day it is received, not in order to hold the drawer of the check, but to hold the indorsers, &c. on the paper col.

lected. See § 428.
(2) Excusing delay.

Infrequent mail.
Draft intended to circulate.
Distance from bank.
Clearing-house usages, and a usage of merchants to do busi-

ness with reference to the clearing-house.
B. HOLDER v. DRAWER.

In order to hold the drawer absolutely, presentment must be made

within the period set forth in A above, unless circumstances dispense with demand altogether; and it makes no difference through how many hands the check may go, the presentment must be made within this period in order to hold the drawer,

whether it be made by the first or the hundredth holder. $ 421 d.

But delay in presentment will only discharge the drawer so far as he is actually damaged by it.

$ 423.

$ 124.

$ 421.

$ 425.

At some time before suit against the drawer presentment must be

made, unless dispensed with.
Circumstances dispensing with presentment altogether before suit.
(1) Agreement to waive formalities, express, or implied from con-

duct or words.
(2) Part payment by drawer before or after check is due.
(3) Bank's insolvency, or stoppage, or an injunction upon it.
(4) If drawer had no funds. $ 421.

(5) When check is given as evidence of loan. § 426.

The first presentment for payment will be a discharge of the drawer,

if the bank offers to pay and the holder refuses; but presentment

for inquiry as to signature merely will not have this effect.

C. HOLDER *. INDORSER. § 421. As between each indorser and subsequent parties, the same period for $ 422.

presentment is allowed, measured from the contract of indorsement, but with the difference that unexcused failure to present within the standard time absolutely discharges the indorser, whether he is injured by the delay or not (Massachusetts, however, holding that

an indorser, like the drawer, is bound if not prejudiced by delay). $ 427. D. PRESENTMENT BY MAIL.

§ 421. Period of Presentment. Holder v. Drawer. - In the absence of agreement or special circumstances it is the right Business

of the drawer of a check to expect it to be presented hours of day for payment at latest within banking hours on the following receipt. day following the day of its delivery to the payee, if the bank on which it is drawn be in the same place where the payee lives or does business; if the bank be not in such place, then the check must, within the same time, be put in due course for presentment, either by being sent by mail to the drawee, or by being deposited for collection with a banker, according to the ordinary custom of such business in that place. But the holder does not gain an extra day for presentment by depositing the

1 $ 421. Simpson v. Pacific Mutual Life Ins. Co., 44 Cal. 139; Cromwell v. Lovett, 1 Hall, (N. Y.) 56; Veazie Bank v. Winn, 40 Me. 62; Boddington ». Schlencher, 1 Nev. & M. 540; s. c. 4 B. & Ad. 752; Moule v. Brown, 4 Bing. N. C. 266; Smith v. Janes, 20 Wend. 192; O'Brien v. Smith, 1 Black, 99; Smith v. Miller, 43 N. Y. 171, 176; Taylor v. Sip, 1 Vroom, 284; Ritchie v. Bradshaw, 5 Cal. 228; Bickford v. First National Bank of Chicago, 42 Ill. 238; Strong v. King, 35 Ill. 9; Wear v. Lee, 87 Mo. 358; Cawein v. Browinski, 6 Bush, 457; Himmelmann v. Hotaling, 40 Cal. 111; Schoolfield v. Moon, 9 Heisk. 171; Kelty v. Second National Bank, 52 Barb. 328; Syracuse, Bing, & N. Y. R. Co. v. Collins, 57 N. Y. 641.

by reasona

check in his bank for collection. If the payee of the check receive it on Monday and deposit it in his bank, presentment must still be made in the same place, or the check forwarded to any other place where the drawee bank is, by the payee's bank (as by himself) during banking hours on Tuesday.”

(a) When a check is taken instead of money by one acting for others, a delay of presentment for a day, or for any time beyond that within which by reasonable diligence An agent

taking a it can be presented, is at the peril of the party so check must retaining the check, as between him and the true present the

same day, owners and parties in interest represented by him. if possible Thus where the payce of a draft took from the draw- ble diligence ees their check for the amount, which during banking hours on that day would have been honored, but which was retained by the payee until the day following, when it was dishonored, it was held that the payee could not have any remedy against the drawer. As between the payee and the drawee the presentment of the check had been made with due promptitude; but as between the payee and the drawer there had been laches by reason of the payee not having presented the check and reduced it to money on the same day on which he received it. The payee had in fact, so far as the drawer was concerned, given to the drawees an extension of credit for one day, and the payment had been lost directly in consequence of such unauthorized extension. (See § 428.)

(6) 1. All drafts foreign or inland must be presented to the drawee within a reasonable time, and in case of nonpayment prompt notice must be given to the drawer Reasonable and indorsers. . What is a reasonable time depends

time a queson the circumstances of each case, and is sometimes in each case. a very difficult question. The relations of the parties, the time, mode, and place of receiving the check, must be considered, and whether the check is post-dated or not.

tion of fact

2 Alexander v. Burchfield, 1 Carr. & M. 75; s. c. 7 Man. & Gr. 1061. 3 Smith v. Miller, 43 N. Y. 171; Chouteau v. Rowse, 56 Mo. 65.

4 Montelius v. Charles, 76 I. 303; Stevens v. Park, 73 Ill. 387; Mobawk Bank v. Broderick, 10 Wend. 307; Allen v. Kramer, 2 Brad. 209. 6 Woodruff v. Plant, 41 Conn. 344.

(c) 2. The drawer 6 cannot (except by agreement or under special circumstances as above) be held absolutely beyond the Period of

business hours of the day following his delivery of drawer's

the check, if the bank is in the same place, or if the absolute liability. bank is an another place, the period of his liability will be until the close of business hours on the first secular day following the receipt of the check by some one in the bank's locus, the check having been mailed upon the day following its delivery by the drawer. This period of absolute liability cannot be extended by circulating the paper; the tenth holder cannot hold the drawer unless he presents within this period measured from the delivery by the drawer, and not from his own receipt of the check, any more than the first holder.

(d) But failure to present within this period does not release the drawer entirely, but only so far as damaged.8 The drawer Though the drawer has the right to expect presentis discharged by delay

ment for payment to be made within the period only so far as damaged

aforesaid, yet his obligations will be affected by a by it.

breach of this duty only under peculiar circumstances. The check which he delivers is only a means whereby

6 See Collection, $ 213, and cases below.

? Werk v. Mad River Valley Branch Bank, 8 Ohio St. 301; Bickerdike v. Bollman, 1 Term, 405.

Syracuse, Bing., & N. Y. R. Co. r. Collins, 3 Lans. 32; 57 N. Y. 611; Scott v. Meeker, 20 Hun, 161; Beeching v. Gower, 1 Holt, 313; Church v. Farnham, 1 Sheld. 393; Woodin v. Frazee, 38 N. Y. Super. Court, 190; Warrensburg Co-operative Building Association r. Zoll, 83 Mo. 91; Cogswell v. Rockingham Ten Cents Savings Bank, 59 N. H. 43.

Where the bank suspended payment on the day following delivery of the check, the holder recovered from the drawer, though the check was not presented until nearly five months after date. Morrison v. McCartney, 30 Mo. 183.

No negligence of holder is a defence if the drawee made no provision to meet the check or has withdrawn his funds. Linville 2. Welch, 29 Mo. 203; Adams v. Darby, 28 Mo. 162; Moody v. Mack, 43 Mo. 210.

The burden is on the holder to show that the drawer has suffered no loss by the delay. Little v. Phenix Bank, 2 Hill, 425. See Stevens v. Park, 73 Il. 387; Griffin v. Riblet, 6 N. Y. Leg. Obs. 421; Gregg v. George, 16 Kans. 546 ; Mordis v. Kennedy, 23 Kans. 408; Jones v. Heili. ger, 36 Wisc. 149 (1874); Henshaw v. Root, 60 Ind. 220 (1877); Griffin v. Kemp, 46 Ind. 172.

8

« PreviousContinue »