Vann, J.
The drawer of the draft in question, although insolvent at the time of delivery to the plaintiff, continued its business of banking in the usual way with unimpaired credit for several days thereafter. As the loss had not occurred when the plaintiff accepted the draft and both parties acted in good faith, believing the bank to be solvent, the fact that it was actually insolvent has no bearing upon the question presented by this appeal.
(Lightbody
v.
Ontario Bank,
11 Wend. 9; affirmed
sub nom. Ontario Bank
v.
Lightbody,
13 id. 101.) As was said by Chancellor Walwoeth for the Court of Errors in that case: “ It is a maxim of the law that the loss is to him who was the owner at the time such loss happened, if both parties were ignorant of the loss at the time of making their contract.”
If it had been a part of the original agreement between the
parties that the plaintiff should take a draft in payment for his cattle, that would have been conclusive and would have left no question for discussion. But at the time of the sale nothing was said upon the subject, and, in the absence of an express agreement, the parties are presumed to have intended that payment was to be made in cash. As, however, upon the delivery of the cattle the plaintiff accepted a bank draft payable to his own order for the precise amount then due him, the question arises whether, under all the circumstances, the contract was impliedly modified and the draft taken in payment. Although there was no conflict in the evidence, the plaintiff claims that it was susceptible of different inferences, and thus raised a question of fact which the trial court erroneously refused to submit to the jury. This is the only ground of error alleged, and in considering it, it is important to first determine upon whom the burden of proof rested. The plaintiff having proved the sale and delivery of the cattle and the acceptance by him of a draft growing out of the transaction itself, but neither signed nor indorsed by the defendants, who was required to show whether the draft was taken as payment or as security ? The answer to this question depends upon whether the draft was taken for a present or a precedent debt. If it was for the former, the presumption is that it was agreed to be taken in payment, and the burden of proving the contrary rested upon the plaintiff; while if it was for the latter, the presumption is that it was not taken as payment, and the
onus
of establishing that it was so taken rested upon the defendants.
(Noel
v.
Murray,
13 N. Y. 167;
Whitbeck
v.
Van
Ness, 11 Johns. 409.) It is evident that the plaintiff did not intend to give credit, because there was nothing said about it; it was contrary to custom, and upon arriving with the cattle in readiness for delivery, his first inquiry was “ How it would be about the pay.” The answer and the acts of the defendants’ agent show, that they expected to pay upon delivery. The business was conducted as cash sales usually are when bulky articles are the subject of the transaction, and a little time must necessarily intervene between delivery and payment. The delivery of
property, not handed from, hand to hand, cannot well be precisely simultaneous with the payment therefor. This is especially true when anima-ls, sold by the pound, are delivered and they have to be driven upon the scales and weighed, and the amount of the purchase computed before payment can be made. Under such circumstances, payment and delivery can only be practically, for they cannot be actually, concurrent. As soon as the cattle had left the scales the plaintiff and the representative of defendants went to the office and each, in computing the amount paid, reached the same result. In the conversation that followed, it was assumed that payment was to be immediate. Ho request was made for time. The subject was not even mentioned. The difference, if it may be so termed, which arose, related not to the time, but to the method of payment. During the delay of an hour or more, that ensued while the messenger was gone to the bank, the plaintiff waited upon the premises in readiness to receive payment on his return. When he returned the matter was at once adjusted. Thus it appears that neither by word nor act did the one party indicate an intention to give time, or the other even a desire for time. There was not an absolute or unconditional delivery. The parting with possession by the plaintiff was upon the implied understanding, necessarily arising from the circumstances, that the delivery was not to be deemed complete until payment was arrranged. Both delivery and payment were parts of the same transaction and were practically simultaneous. If authority is necessary upon a point so clear, the case of
Gibson
v.
Tobey
(46 N. Y. 637) may be relied upon as analogous. The remarks of the chief judge, in delivering the opinion on pages 641 and 642, are almost as applicable to the case in hand, in this as well as in other respects, as to the ease then under consideration by the court.
The presumption of law, therefore, was that the plaintiff accepted the draft of the First Hational Bank of Buffalo in payment and satisfaction of his demand for the cattle, and the burden of proof was upon him to meet this presumption by showing that it was not thus received. Such presumption
is conclusive unless, as said by the court in the case last cited (page 641), “the contrary be expressly proved.” By what evidence does the plaintiff claim to have rebutted this presumption ?
Prior to the weighing of the cattle it is evident from their conversation that both parties expected payment to be made in currency. By the time the weighing was finished and the purchase-price computed the bank had closed; and when defendants’ agent asked the plaintiff if a draft would not answer his purpose he replied that perhaps a draft might answer, but he would prefer the currency as he wanted to use it when he got home. Instead of refusing to take a draft, which was clearly his right, he intimated that he would accept one. He made no objection to a draft, as such, but expressed a preference for the currency as he wanted it for present use. He did not say that a draft was not as good or as safe as the currency, but based his preference upon his own convenience. When he was told by the defendants that they would do the best they could for him, he made no reply, although if he intended to refuse a draft, that was the natural time to say so before they sent three miles to the bank. While the cleric was gone he had time to think it over ; and when the draft was finally handed to him with the remark “ That makes you all right,” it was incumbent upon him, if he intended to accept the draft either as security, or in case it should be paid, or upon any other condition, to then say so. He said nothing upon the subject, but looking at it said that they had not indorsed it. Thus it appears that his attention was directed to the point that if he accepted the draft, as it was not indorsed by the defendants, that they did not intend to be responsible if it was not paid.
(Breed v. Cook,
15 Johns. 241.) In response to his remark that it was not indorsed, he was told that it was payable to his order and did not need to be indorsed but was all right as it was.
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Vann, J.
The drawer of the draft in question, although insolvent at the time of delivery to the plaintiff, continued its business of banking in the usual way with unimpaired credit for several days thereafter. As the loss had not occurred when the plaintiff accepted the draft and both parties acted in good faith, believing the bank to be solvent, the fact that it was actually insolvent has no bearing upon the question presented by this appeal.
(Lightbody
v.
Ontario Bank,
11 Wend. 9; affirmed
sub nom. Ontario Bank
v.
Lightbody,
13 id. 101.) As was said by Chancellor Walwoeth for the Court of Errors in that case: “ It is a maxim of the law that the loss is to him who was the owner at the time such loss happened, if both parties were ignorant of the loss at the time of making their contract.”
If it had been a part of the original agreement between the
parties that the plaintiff should take a draft in payment for his cattle, that would have been conclusive and would have left no question for discussion. But at the time of the sale nothing was said upon the subject, and, in the absence of an express agreement, the parties are presumed to have intended that payment was to be made in cash. As, however, upon the delivery of the cattle the plaintiff accepted a bank draft payable to his own order for the precise amount then due him, the question arises whether, under all the circumstances, the contract was impliedly modified and the draft taken in payment. Although there was no conflict in the evidence, the plaintiff claims that it was susceptible of different inferences, and thus raised a question of fact which the trial court erroneously refused to submit to the jury. This is the only ground of error alleged, and in considering it, it is important to first determine upon whom the burden of proof rested. The plaintiff having proved the sale and delivery of the cattle and the acceptance by him of a draft growing out of the transaction itself, but neither signed nor indorsed by the defendants, who was required to show whether the draft was taken as payment or as security ? The answer to this question depends upon whether the draft was taken for a present or a precedent debt. If it was for the former, the presumption is that it was agreed to be taken in payment, and the burden of proving the contrary rested upon the plaintiff; while if it was for the latter, the presumption is that it was not taken as payment, and the
onus
of establishing that it was so taken rested upon the defendants.
(Noel
v.
Murray,
13 N. Y. 167;
Whitbeck
v.
Van
Ness, 11 Johns. 409.) It is evident that the plaintiff did not intend to give credit, because there was nothing said about it; it was contrary to custom, and upon arriving with the cattle in readiness for delivery, his first inquiry was “ How it would be about the pay.” The answer and the acts of the defendants’ agent show, that they expected to pay upon delivery. The business was conducted as cash sales usually are when bulky articles are the subject of the transaction, and a little time must necessarily intervene between delivery and payment. The delivery of
property, not handed from, hand to hand, cannot well be precisely simultaneous with the payment therefor. This is especially true when anima-ls, sold by the pound, are delivered and they have to be driven upon the scales and weighed, and the amount of the purchase computed before payment can be made. Under such circumstances, payment and delivery can only be practically, for they cannot be actually, concurrent. As soon as the cattle had left the scales the plaintiff and the representative of defendants went to the office and each, in computing the amount paid, reached the same result. In the conversation that followed, it was assumed that payment was to be immediate. Ho request was made for time. The subject was not even mentioned. The difference, if it may be so termed, which arose, related not to the time, but to the method of payment. During the delay of an hour or more, that ensued while the messenger was gone to the bank, the plaintiff waited upon the premises in readiness to receive payment on his return. When he returned the matter was at once adjusted. Thus it appears that neither by word nor act did the one party indicate an intention to give time, or the other even a desire for time. There was not an absolute or unconditional delivery. The parting with possession by the plaintiff was upon the implied understanding, necessarily arising from the circumstances, that the delivery was not to be deemed complete until payment was arrranged. Both delivery and payment were parts of the same transaction and were practically simultaneous. If authority is necessary upon a point so clear, the case of
Gibson
v.
Tobey
(46 N. Y. 637) may be relied upon as analogous. The remarks of the chief judge, in delivering the opinion on pages 641 and 642, are almost as applicable to the case in hand, in this as well as in other respects, as to the ease then under consideration by the court.
The presumption of law, therefore, was that the plaintiff accepted the draft of the First Hational Bank of Buffalo in payment and satisfaction of his demand for the cattle, and the burden of proof was upon him to meet this presumption by showing that it was not thus received. Such presumption
is conclusive unless, as said by the court in the case last cited (page 641), “the contrary be expressly proved.” By what evidence does the plaintiff claim to have rebutted this presumption ?
Prior to the weighing of the cattle it is evident from their conversation that both parties expected payment to be made in currency. By the time the weighing was finished and the purchase-price computed the bank had closed; and when defendants’ agent asked the plaintiff if a draft would not answer his purpose he replied that perhaps a draft might answer, but he would prefer the currency as he wanted to use it when he got home. Instead of refusing to take a draft, which was clearly his right, he intimated that he would accept one. He made no objection to a draft, as such, but expressed a preference for the currency as he wanted it for present use. He did not say that a draft was not as good or as safe as the currency, but based his preference upon his own convenience. When he was told by the defendants that they would do the best they could for him, he made no reply, although if he intended to refuse a draft, that was the natural time to say so before they sent three miles to the bank. While the cleric was gone he had time to think it over ; and when the draft was finally handed to him with the remark “ That makes you all right,” it was incumbent upon him, if he intended to accept the draft either as security, or in case it should be paid, or upon any other condition, to then say so. He said nothing upon the subject, but looking at it said that they had not indorsed it. Thus it appears that his attention was directed to the point that if he accepted the draft, as it was not indorsed by the defendants, that they did not intend to be responsible if it was not paid.
(Breed v. Cook,
15 Johns. 241.) In response to his remark that it was not indorsed, he was told that it was payable to his order and did not need to be indorsed but was all right as it was. He then said: “ I suppose you could not get the currency,” and thus the conversation ended. He took the draft and went home and used it. Upon the trial he testified that if he had had any doubt about its being
good he would not have taken it. "Why not, if he understood that the defendants were to be responsible if the draft was not paid, as it would be so much additional security? Whether the draft was accepted as payment or not depends upon the intention of the parties to the transaction. That intent is to be gathered from their acts and declarations. With what intent, according to what was said and done, did the plaintiff receive the draft ? By what word or act did he indicate an intention to accept the draft for any purpose other than that which the law imputes to him on the face of the matter?
The plaintiff also testified that he had used drafts of this character before in his business as a wool buyer, and that in a memorandum made by him of this transaction under the date when it occurred, after stating the weight of the steers and other facts, he made the following entry: “Received $1,311.25 in draft on blew York from McDonough, Stevens & Dunning.” The memorandum contained the computation showing that the cattle came to that sum, but it did not state with what intent or for what purpose he received the draft, leaving it to be plainly inferred that he received it with no special or unusual intent or purpose, but as he would currency, and in the place of currency.
We think that the plaintiff failed to meet the burden of proof cast upon him by the conceded facts of the case. As said by the court in
Gibson
v.
Tobey (supra,
643): “ If the plaintiff had not intended to have received the draft in payment, he would have said so, or required an i ndorsement.” And in
Whitbeck
v.
Van Ness (supra,
414), “it was made payable to the plaintiff himself, and the defendants, by not indorsing it, or guaranteeing the payment, clearly declined pledging their own responsibility.”
Bank drafts have come to be an important medium in the transaction of business, especially where large payments are made. They are regarded as safe and convenient. Under the improved systems of banking that now prevail, the confidence
reposed in such drafts is very great. The presumption, therefore, that a draft of this character was received in payment is stronger than in the case of a note, check or draft of a private individual.
While the rule is undoubted that questions of intent are for the jury even when the facts are undisputed, still where the intent is undisclosed, proof must be given of acts or words from which the inference may fairly be drawn that such intent ■existed. 3STo such evidence appears in the record now before us. All that was said and done in connection with the ■delivery and acceptance of the draft is quite as consistent with an intent to accept it in payment as with the opposite intent. The evidence does not admit of conflicting inferences relating to the point in question. Moreover, the rule is “ not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the
onus
of proof rests.”
(Improvement Co.
v. Munson, 14 Wall. 442.)
“
If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, then it is the duty of the court to direct a verdict.”
(Dwight
v.
Germania Life Ins. Co.,
103 N. Y. 341, 358.)
We think that the trial court was right in directing a verdict for the defendants and that the order appealed from should be reversed and judgment ordered for the defendants ■on the verdict, with costs.
All concur, except Bradley and Haight, JJ., not sitting, and Potter, J., dissenting.
Ordered accordingly.