Gregg v. J. M. George & Co.

The opinion of the court was delivered by Brewer, J.:

This was an action on a check. It was a check drawn by Gregg on November 1st, on A. Thomas & Co., bankers of Paola, and on the same day given to George & Co. On the 2d it was presented to the bank. It is not disputed by counsel that this was in due time. But it is claimed that no demand was made for money on the check, that the party simply sought to use it in buying exchange. We quote the plaintiff’s testimony on cross-examination on this point, and there is no contradictory testimony:

“November 1st 1869', Gregg gave me that check at our store-room, near the door. Don’t know time. At an early hour next day, I presented the check to Mr. Edwards in Paola bank, who then said to me they were not selling exchange, that day, on St. Louis. I did not demand exchange on any particular bank. I wanted exchange on St. Louis. I demanded no other exchange. Edwards slipped my order back, and said they were not selling exchange. I kept the check. I went into the bank with money and this check, and asked for exchange/on St. Louis. I asked the bank to give me credit on account; it refused. I took my money and check and left the bank; I did not ask the bank to give me money on that check; I did not wgnt the money. Never after presented the check.”

On his direct examination plaintiff had testified ín general terms, that he “presented the check for payment — the bank did not pay it — the bank refused to pay it.” This seems to us clearly sufficient. Waiving all question as to the matter of exchange on St. Louis, it appears that he asked the bank *549 to credit the check to his account, and it refused. This was a dishonor of the check. It was unnecessary after that to go through the form of specifically demanding its payment in cash over the counter. Demand and refusal may be necessary; but no particular form or expression is essential to either. It is sufficient if it clearly appears that the bank, after a demand, refuses to accept the check as of the value its face indicates.

The learned counsel for plaintiff in error criticize the instructions asked by the defendant and refused, as also the single instruction given at the instance of the plaintiff. The last sentence in the latter is in these words: “And the holder of a check is not required to present it to the bank to which it is directed for payment more than once, when on the first presentation the bank has refused to pay the sa/me.” Counsel contend that “this carries upon its face to the jury the assumption by the court that George had once presented this check to the bank and demanded payment which was refused, and it was unnecessary to present it a second time.” We fail to see any such assumption. The whole instruction is a statement of an abstract proposition of law. There is in terms no reference to the parties or facts in the case. And any assumption which it carries, grows out of the fact that, though an abstract proposition, it is applicable to the facts as .they appeared in evidence.

Counsel insist that the court erred in refusing the first and ■ second instructions asked by defendant. Those instructions refer to the relations of banker and customer, and the effect of drawing a check upon the money in the hands of the banker. It may be that they state the rules of law correctly, but we fail to see how they would have assisted the jury in this case, which is a controversy between the drawer and ■holder of a check. At any rate, they are not so pertinent to* the issue as to make the refusal to give them an error calling for a reversal.

An instruction was asked and refused, which stated the law in respect to the failure to give notice of the non-payment, *550 and stated the law correctly as applied to ordinary bills of exchange. The law is not so rigid in respect to checks. The failure to make demand within a reasonable time, and to give notice of non-payment by the succeeding day, does not absolutely discharge the drawer. It is sometimes said that the drawer is the principal party, the one primarily liable on the check. Perhaps this is not strictly correct; and yet, unless the drawer has suffered some loss by a failure to make demand and give notice, he is not ordinarily discharged from liability. In 3 Kent, p. 104, note “a,” it is said, “The drawer of a check is not a surety, but the principal debtor, as much as the maker of a promissory note. It is an absolute appropriation of so much money in the hands of the banker to the holder of the check, and there it ought to remain until called for; and the drawer has no reason to complain of delay unless upon the immediate failure of his banker. By unreasonable delay in such a case, the holder takes the risk of the failure of person or bank on which the check is drawn. This is quite distinct from the strict rule of diligence applicable to a surety, in which light stands the indorser.” Story on Prom. Notes, §§ 490-498, and notes; Little v. Phœnix Bank, 2 Hill, 425 ; Lester v. Jones, 8 Bush. (Ky.) 357; Pack v. Thomas, 13 Smedes & Mar. 11; Kemblen v. Mills, 1 Manning & Granger, 757; Byles on Bills, p. 14. We think the court did not err in refusing the instruction.

These are all the questions it seems necessary to notice, and in them appearing no error the judgment will be affirmed.

All the Justices concurring.