California National Bank v. Weldon

Lost Instrument—Burden of Proof—Rigor of Common Law Relaxed—Reasonable Diligence—Liberality of Courts.—Though the burden of proof is upon the plaintiff to show the loss of an instrument relied upon by him, yet the rigor of the common law in making such proof has been relaxed, and the nonproduction of • such instrument is now excused for reasons more general and less specific, and upon grounds more broad and liberal than were formerly admitted. When there is no suspicion hanging oyer the instrument, all that ought to be required is reasonable diligence to obtain the original, and the courts in such cases are extremely liberal.

Id.—Sufficiency of Proof of Loss—Matter for Trial Court—Discretion—Review upon Appeal.—It is for the trial court to determine the sufficiency of the proof of loss of an instrument and of the search therefor. Since much is left to its discretion, the appellate court will not review its rulings in this respect unless the proof is manifestly insufficient to warrant secondary evidence.

Id.—Loss of Check—Admission and Proof of Contents—Payment by Bank—Loss in Transmission.—Where the contents of a lost check were both admitted by defendant and fully proved, and the check was drawn upon his bank at Ukiah and sent- to the payee at Klamath Palls, Oregon, and was there cashed by a local bank, and remitted to plaintiff bank, which credited the paying bank therewith, and sent it with instructions to the Ukiah bank, keeping a copy of each, and it was lost in transmission, and plaintiff endeavored without effect to trace and locate the same, the proof of its loss was sufficient to admit proof of its contents.

Id.—Inclosure of Other Lost Checks—Identity of Particular Check—Evidence—Bank Records—Course of Business—Undisputed Loss.—Where the letter inclosing the lost check also inclosed other checks, which were also lost, and the witnesses from plaintiff bank had no independent recollection of the particular lost check, but testified to the identity from the records of the bank, and to its transmission from its unvarying course of business, and its self-interest would impel it to make prompt disposition of the particular cheek, which its records show was done, and there was evidence tending to show that it was lost in its transit, this court is not at liberty to review its sufficiency, especially as there is not the slightest evidence to controvert the fact of loss.

Id.—Presentment and Notice op Dishonor op Lost Check not Required.—There can be no notice of dishonor without presentment, and if presentment is excused so also is notice of dishonor. Aside from the statutory provision that neglect of presentment is subject only to the extent of injury suffered, which does not appear to exist, the rule of presentment and notice of dishonor does not apply to a lost check, in order to institute an action thereon against the maker of the check by an indorsee of a bank which has paid the check to the payee.

Id.—Presentment op Lost Check Fruitless—Compliance Impossible. No law would require a bank to pay out the money of its depositor on an alleged lost check, and a demand that it do so would be fruitless. Its obligation is only to pay the depositor’s money to holders of cheeks produced to the bank for payment therefrom, to be surrendered before payment is made. Where a check is lost without the fault of the plaintiff, while in transit, the rule requiring a presentment cannot be complied with, and compliance therewith being impossible, plaintiff’s failure to present the check is not fatal to his right to recover thereon against the maker.