Phillips v. Blake

42 Mass. 156

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1840
• Status: Published

Opinion

Shaw, C. J.

The question is, whether the facts found show a payment in full of the decrees of distribution. The facts show that the defendant offered payment in bank notes, which the attorney of the heirs refused to take in payment at par, but subsequently did take. The evidence shows satisfactorily, that there was no agreement between the parties, either on the part of Mr. Blake, to make good the discount, or on the part of Mr. Manners, to waive his claim to a discount, and receive the bills at par. On the contrary, each claimed to stand upon his legal rights, and each gave notice to the other, that he should do so. Under this mutual protest, the bills were paid and received. The question then is, independently of any agreement, what those legal rights are.

The general rule is, that if payment is made in bank bills, and accepted, it is a good payment. Bank notes are deemed money, and pass as such, unless objected to on that ground and they are considered a good tender, unless specially objected to on that account. Wright v. Reed, 3 T. R. 554. If such tender is accepted, it is of course a payment. In the present case, the general effect of what passed was, that Mr. Blake offered and paid the bank notes as money, and refused to allow any discount. But Mr. Manners refused to accept them as money, but did accept them. Under these circumstances, the court are of opinion, that although he was not bound to accept bank notes as money, yet as they were offered as such, and on no other terms, and no agreement was made to allow a discount, and he accepted them, he must be deemed to have taken them upon the terms offered, as money. The act in such case is conclusive of his assent, and the protest unavailing.

But there are some other considerations, which lead to the same result. A bank note is evidence of a credit, at the bank, for a like sum of money, and a contract to pay it to the holder, in specie. The law presumes it will be paid on request, and it gives a penalty to the holder, for damages for non-payment, which is deemed sufficient to make the bank note equivalent to cash. The agent of the heirs, by receiving the bank notes, took upon himself the power and duty of collecting them, and took from the plaintiff that power. The condition of the parties was changed in this respect. The defendant, by retaining the bills, would have had a legal right to demand payment in specie, and, on failure, to commence an action and recover large damages for the detention ; and it may be presumed that he regarded this right, as making the bank notes equivalent to specie in value. This right was transferred to Mr. Manners, by the tender and acceptance.

It might admit of a serious question, whether it would be competent for the plaintiff, if, on other grounds, he could maintain this action, to recover the difference between the nominal value of the bank notes and their current value in market, in consequence of a suspension of specie payments, without showing an actual demand upon the bank, and refusal to pay in specie. No such suspension was authorized by law. The banks were at all times bound to .pay their notes in specie at the nominal amount. on presentment at their bank, and not otherwise. And it is extremely questionable, when bank notes are paid and received, whether it c an he averred that they would not have been paid on presentment, without presentment made. Until such presentment, there was no default, and the notes were not dishonored. But we have not thought it necessary to give an opinion upon this point, because we are all of opinion, that the bank notes being offered in payment at par, and not otherwise, the actual acceptance of them was an acceptance of them at their nominal par value, as tendered, and amounted to a payment.

Verdict set aside, and plaintiff nonsuit.