Gough v. Staats — 13 Wend. 549

Majority

p. 549

Gough & Herring vs. Staats.

NEW YORK

May, 1835.

Headnote

A check on a bank, post-dated and negotiated, is payable on de mand, on or after the day on which it purports to bear date.

Greater diligence is required in the presentment of cheeks than of bills • of exchange; where, however, there are no peculiar circumstances, laches cannot be imputed if the presentment be made on the day next after that on which the check is given.

A drawer of a check cannot be called on for payment, until after demand upon the drawee; and to charge him, it is enough to show such demand and refusal to pay at any time before suit, unless it appear that the drawee has failed, or the drawer has otherwise sustained injury by the delay.

In an action, however,against an endorser of a check,it must appear that demand was made within a reasonable time ; and what shall be deemed reasonable time is a question of law,where there is no dispute about the facts

If there has not been due diligence in presenting the check for pay ment, the endorser is discharged, although he has not been prejudiced by the delay.

Where all the parties reside in the same place, the omission to present a check for six days after it may be presented discharges the endorser.

The endorser of a check, for the accommodation of the maker, to enable the latter to obtain a loan, cannot be charged as a guarantor, where the declaration contains only the money counts, although a copy of the • check is served with the declaration.

This was an action of assumpsit, tried at the Albany circuit in September, 1833, before the Hon. James Vanderpoel, one of the circuit judges.

p. 550

The plaintiffs claimed to recover on three checks drawn by one Thomas Hurst, on the Mechanics’ and Farmer’s Bank in the city of Albany, endorsed by the defendant, and negotiated by Hurst to the plaintiffs. One check was for $100, and bore date on the 4th August, 1832; the second, for a like sum, bore date on the 10th August, 1832 ; and the third, for $50, bore date on the 11th August, 1832—each of them payable to bearer. The checks were endorsed by the defendant for the accommodation of Hurst, who obtained money upon them from the plaintiff’s who at the time were brokers. The checks were made, endorsed and negotiated previous to their dates; in other words, were post-dated. On the seventeenth of August, 1832, they were presented at the bank, payment refused, and notice given to the defendant. At tho time of presentment, Hurst had no funds in the bank; nor had he funds there during the month of August, except a few cents. All the parties resided in the city of Albany. The declaration contained only the money counts, but copies of the checks had been served with the declaration. The judge ruled that the plaintiffs had not used due diligence in presenting the checks. Whereupon the plaintiffs submitted to a nonsuit, with leave to move for a new trial,

S. Stevens,

for the plaintiffs. There was no pretence that the defendant had sustained any injury, in consequence of the non-presentment of the checks at the earliest possible moment, and it is only where prejudice accrues from delay in making the presentment that the endorser is discharged. In the absence of proof, the presumption is, there was no injury. Considering the making and negotiation of these checks as strictly commercial transactions, the presentment of them for payment was made within a reasonable time. But they were not commercial transactions; the checks were made by the drawer and endorsed by the defendant, as securities for the payment of money to be loaned by the plaintiffs; and as such, they must be deemed to have been presented within reasonable time. Knowing the object of the securities, the endorser was liable as a guarantor.

p. 551

J. M’Kown,

for defendant. Where the parties all reside in the same place, a check must be presented on the day it is received, or, at farthest, on the next day. The maker, in an action against him, is bound to show injury arising from delay in presentment, but the endorser is not; he may insist upon a strict presentment. The defendant cannot under the pleadings in this case, be held liable as a guarantor ; and if he could, the plaintiffs have failed to give him such notice as would charge him.

By the Court,

The question involved in this case has been so recently under the consideration of the court, in the case of The Mohawk Bank v. Broderick & Powell, 10 Wendell, 304,^[1] that I deem it unnecessary to do any thing more than refer to the leading principles which are there established. The principal authorities are there collected and considered. The check on which that suit was brought was drawn by one Le Breton, on the Mechanics’ and Farmers’ Bank in the city of Albany, payable to the order of the defendants, and bore date the 14th January, 1830. It was drawn previous to that day, and post-dated and delivered to the defendants, to whose order it was payable. They transferred it by a blank endorsement before the 14th to one Myers, who on the 14th deposited it in the Mohawk Bank at Schenectady, where it was passed to his credit. It was sent by the plaintiffs to Albany, on the third of February following, to the Commercial Bank, who presented it for payment at the Mechanics’ Bank on the 6th, when payment was refused, and regular notice given to the defendants. It was held that the plaintiffs had been guilty of laches, in presenting the check for payment, and that the endorsers were on that ground discharged. It was there held that the effect of the check, having been drawn and negotiated before its date, was merely to make it payable on demand,on or after the day on which it purported to bear date. It was shown, by a reference to the cases, that greater diligence was required in present-

* confirmed in court for correction of errors—ante, 133.

p. 552

c^ec^s f°r payment than had ever been required in presen ting bills of exchange. The general rule, as laid down in Murray v. Judah, 6 Cowen, 490, is recognized, that a check ts not due from the drawer until payment had been demanded from the drawee, and refused by him; but that, as between the holder and the drawer, a demand at any time before suit brought is sufficient, unless it appear that the drawee has failed,or the drawer has in some other manner sustained injury by the delay. But that as between the holder of a check and an endorser or third person, payment must be demanded within a reasonable time. Where there is no dispute about the facts, whether the presentment is within a reasonable time or not, is a question of law, and must in some degree depend upon the particular circumstances of each case. Where there are no peculiar' circumstances in the case, the rule seems to be settled, that no laches can be imputed to the holder, if the check is presented on the day next after that on which it was given. Richford v. Ridge, 2 Campb. 537. Robson, v. Bennett, 2 Taunt. 389. 1 Holt, 313. Cornell v. Lovet, 1Hall’s Sup. C. R. 68; 6 Wendell, 369, S. C. The Chief Justice, in the opinion in The Mohawk Bank v. Broderick & Powell, after referring to these and other cases, says : “ The true rule undoubtedly is, that a check, to charge an endorser, must be presented with all the despatch and diligence which is consistent with the transaction of other commercial concerns ;” and, in relation to the circumstances of that case, he remarks : “ The plaintiffs received this check on the 14th January. They were in the habit of sending notes (to Albany) at other times than their periods of exchange, (which were once in three weeks,) according to the time of their falling due ; there was nothing in the nature of their business, therefore, which prevented an earlier presentment of the check in question. According to the case above referred to,” he continues, “ the check should have been sent on the 15th, (the day after it was received,) it would then have been presented on the 16th.”

In the case now under consideration, there was a delay in presenting those three checks for payment, of 13 days on the first, 7 on the second, and 6 on the third, after they respect

p. 553

ively came to the hands of the plaintiffs, and 'weré payablej the drawer and the drawees, holders and endorser, all living in the same place. It certainly presents, at least, as strong a case of laches as The Mohawk Bank v. Broderick & Powell.

Upon the question of due diligence to charge an endorser, whether he has been prejudiced or not by the delay, is perfectly immaterial. It is not to be inquired into. The law presumes he has been prejudiced. 6 Cowen, 490. 3 Johns. Cas. 5 , 259. 7 Cowen, 705. As between the drawer and holder, if the drawer has not sustained injury by the delay in presenting and demanding payment of the check, he will not on that ground be exonerated from its payment.

The defendant cannot be charged as a guarantor in this form of pleadings. Whether he would be entitled to notice, if he stood in that character, it is therefore unnecessary to consider.

Motion for new trial denied.