Van Dyck v. Jones

Headnote

Liability of indorser who has not received notice of presentment and non payment— how revived—conditional acquiescence hy indorser in charge of such check to his hank account—effect of.

Appeal from judgment dismissing the complaint.

The action was brought to charge the defendant, as indorser, with the amount of a certain check of Patrick E. Reed, of the presentation and non-payment of which the defendant was not notified according to law. With a single exception, there was no evidence in the case that the defendant admitted or recognized a liability, on Ms part, to pay the check.

This exception relates to the giving of two certain checks on July 12, 1877. One of these was the check of Thomas B. McQuade, bearing date on that day, drawn upon the Yorkville Savings Bank in favor of the defendant, for the formal transfer of a balance of $589.05, claimed by McQuade to stand in Ms favor upon the books of the bank under a certain arrangement. made between himself and other persons, including the defendant, on the one side, and the bank on the

other side, for the transfer of balances ; and the other was the check of defendant’s firm, also bearing date of that day, drawn upon the Bull’s Head Bank to the order of the defendant, for $462.58, and indorsed by Mm. Up to this time, the defendant had insisted that he was not liable, but on the day named he delivered the checks referred to to the secretary of the Yorkville Savings Bank, in settlement of the balance claimed to stand against him by reason of the Reed check having been charged to his account. Such delivery took place after the said bank and its officers had been enjoined from continuing business, but the checks came into plaintiff’s hands when he took possession of the assets of the bank as receiver, after his appointment as such, and the plaintiff,-with knowledge of the circumstances under which they were given, retained them without objection or offer to return them ; and before the commencement of this action he collected from the Bull’s Head Bank the amount of the check drawn upon the latter.

The court, at general term, held, that in the absence of any admission or recognition of his liability to pay the check, by the defendant, the referee was right in his conclusions and views, and further said:

“The giving of the checks, under these circumstances, constituted only a conditional acquiescence by the defendant in the charge of the Reed check to Ms account, and the plaintiff had his election to accept or reject the acquiescence proffered. He could not affirm the transaction in part and repudiate it in part. The defendant not being then legally liable in any form, was at liberty to dictate the conditions upon which he was willing to settle the claim made against him and to insist that, at least so far as his account was concerned, the arrangement for the transfer of balances should be carried out. This being so, it is immaterial

whether the arrangement for the transfer of balances as originally made, was, or was not, a valid one.”