Williams v. Braun

Action for Goods Sold—Check on Account—Dishonor—Insolvency of Bank—Delay in Notice—Injury not Shown—Plea of Payment Untenable.—In an action for goods sold, where the sale and delivery are unquestioned, and defendant claimed part payment by a check drawn toward the account, which was presented for payment to the bank on which it was drawn two days later, and was dishonored by reason of the insolvency of such bank, the mere delay of written notice of such dishonor until forty days thereafter cannot, in the absence of any claim of loss or injury resulting from such delay, sustain a plea of part payment to the extent of such cheek.

Id.—Common-law Bule as to Checks—Want of Diligence—Showing of Injury Essential.—At common law, the maker of a cheek could not be exonerated from liability by the mere failure of the payee to present the cheek or to give notice of its dishonor with due diligence, except to the extent that he could show injury to himself consequent upon such want of diligence.

Id.—Season of Bule—Check a Bequest for Payment from Supposed Funds—Maker a Principal Debtor—Bights Limited.-—The common-law rule as to cheeks is founded in reason and justice. One who is indebted to another, and has given a cheek to his creditor, does not, by the mere giving of the check, pay the debt. A check is only a request to another to pay to the payee thereof the sum named out of funds supposed to be on deposit to meet it. If the money is not paid, the maker of the check remains the principal debtor, and is not a surety. He is at most entitled only to such presentment and notice as will save Mm from loss, and cannot profit by a neglect wMch could do Mm no injury.

Id.—Common-law Distinction Between Bills of Exchange and Checks—Effect of Negligence.—At common law, bills of exchange stand upon a different footing from checks. Negligence as to presentment or notice of dishonor of a bill of exchange absolutely discharges the drawer from liability, while the maker of a check is not thereby discharged from liability except to the extent to which it can be shown that he has suffered actual loss from negligence.

Id.—Construction of Code as to Bills of Exchange and Checks— Presentment and Notice of Dishonor.—Section 3177 of the Civil Code, which provides: “The rights and obligations of a drawee of a bill of exchange are the same as those of the first indorser of any other negotiable instrument,” though it seems to include a check so far as notice of dishonor is concerned, yeti it is to be construed with section 3255 of the same code, which provides as to checks: “The drawer and indorsers are exonerated by delay in presentment only to the extent of the injury which they suffer thereby.” The presentment of the check being the first and material thing, and the notice of dishonor only a secondary matter, the evident spirit and meaning of section 3255 is that delay in presentment, or in giving notice of dishonor, exonerates the drawee only to the extent of the injury he has suffered thereby. TMs construction accords with justice, and with the long-established law as to notice of dishonor of checks.