Gough v. Staats

13 Wend. 549

Opinion

By the Court,

Sutherland, J.

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,

* 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-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 respectively 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.

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