Bank of Mobile v. Brown

42 Ala. 108

• Court: Supreme Court of Alabama
• Decided: January 15, 1868
• Status: Published

Opinion

JUDGE, J.

It is unnecessary to discuss or decide the question, whether bank checks payable in money, are, or may become negotiable under the law merchant; and to what extent, if any, such checks are governed by the commercial law, as to days of grace, protest, and notice. For authority upon this question, however, see 2 Parson’s on Notes and Bills, 58, and cases cited in notes on pages 58 and 59. Neither is it necessary that we should determine what influence, if any, section 1834 of the Revised Code, taken in connection with section 1838, has upon the question ; said sections reading as follows : “Bills of exchange, and promissory notes payable in money at a bank or private banking house, are governed by the commercial law, except so far as the same is changed by this Code.” “All other instruments payable in money, at a bank or private banking house, are governed by the commercial laws, as to days of grace, protest, and notice.” The reason why it is unnecessary either to discuss or decide these questions, is, that the instrument sued on in the case before us, is not payable in money. And not being payable in money, it is not négotiable paper within the meaning of the law merchant. — 2 Parson’s on Notes and Bills, 58 ; Little v. Phœnix Bank, 2 Hill, (N. Y.) 425 ; Leiber v. Goodrich, 5 Cowan, 186; Thompson v. Sloan, 22 Wed. 73, and numerous cases there cited. Such, too, has been the settled law of this State for a period of more than twenty years. — Young v. Scott, 5 Ala. 475 ; Carlisle v. Davis, 7 Ala. 42. And the principle of these decisions has been adhered to in later cases.

It results that a protest was not necessary in the present case, to fix the liability of the drawer. But, notwithstanding this, it was necessary to charge the drawer, that the check should have been presented for payment within a reasonable time after it was drawn and delivered, and that prompt notice of its non-payment should have been given to the drawer. Were these requisites of the law complied with? We have carefully examined the charge of the court in relation to them, and are satisfied that no error was committed therein.

2. The measure of damages for the breach of a contract to be discharged by payment in Confederate States treasury notes, is the value of such notes, at the time fixed for payment by the contract. — Kirkland v. Moulton, decided the present term. This question is not involved in any ruling of the court below, and consequently there is nothing for us to revise in relation to it. The defendant below did not ask the court to charge the jury that “if the check was paid for in Confederate money, and if the liability on the check did not arise until after Confederate money ceased to be of value, the plaintiff can only recover nominal damages, if he can recover anything.” But the refusal to give this charge does not raise the question ; the main question was not whether the check “was paid for in Confederate money,” but was it to be paid in Confederate money ? This inquiry was not embraced in the charge; consequently, the refusal of the court to give the charge was not a decision upon the question, one way or the other. The record, it is true, shows it was in evidence before the jury, that the check was drawn to be paid in Confederate States treasury notes ; but no action of the jury having been asked upon this evidence by an appropriate charge, and the record not showing that any charge was given by the court adversely to appellant upon it, the question is not presented in a revisable shape. And such would be our conclusion, even if the bill of exceptions purported to set out all the evidence, which it does not do, for no rule is better settled, than the one that this court, in the exercise of its appellate jurisdiction, in cases like the present, will not permit questions to be raised for revision for the first time, on appeal; all revisable questions must be made, and passed upon in the court below, to secure a revision of them by this court.

But there is another ground upon which the charge in question was properly refused. Had it been given, the jury would have been authorized to give the plaintiff nominal damages only, in the event of their finding that the check was paid for, in Confederate money, irrespective of the question as to whether it was understood or agreed, when the check was drawn, that it should be discharged by a payment in Confederate money. The consideration of the evidence in relation to the latter question would, in effect, have been withdrawn from the jury by the charge.

3. There was no error in the refusal of the court to give either of the other charges requested by app diant.

It results from what we have said, that the judgment must be affirmed.