Small v. Franklin Mining Co.

99 Mass. 277

Opinion

Chapman, C. J.

The plaintiff contends that his assessment has been paid by the indorsement and delivery of the check of Williams to the defendants’ clerk, and the subsequent conduct of the clerk in respect to it. The plaintiff had held the check for several days without presentment or inquiry, believing it" to be good, and represented to the defendants’ clerk that it was all right. It was presented for payment on the next day, and this presentment was seasonable. The drawer had failed, and his paper had gone to protest on the day when the plaintiff passed it to the defendants’ clerk. It was not therefore all right, as he represented it to be ; that is, it was not a check which would be paid on due presentment at the bank. It was a different thing in substance from what either party supposed it to be ; as much so as the bill of a broken bank which is passed and received as current.

The plaintiff was not entitled to such notice as must be given upon the dishonor of a bill of exchange. He was at most entitled to such reasonable notice as would save him from loss. It does not appear that the delay to give him notice, which was of a few days only, occasioned any damage to him, or that the value of the check was lessened.

There is no reason why the defendants should be enjoined from the collection of their assessment.

Bill dismissed, with costs.