Fick v. Jones

Blake, J. Plaintiff brought this action on a check, drawn by defendant J. Will Jones, in words and figures as follows: *366 “Founded “Peoples Bank and Trust Company 1889 Seattle, Wash., Feb. 18th, 1929 No. 3227 “Pay to the order of E. P. Fick, $200.00 “Two Hundred Dollars J. W. Jones.” From judgment for plaintiff, defendants appeal. It was neither alleged nor proven that the cheek was ever presented to the bank for payment. On the contrary, the trial court found that it had not been. It was found, however, that respondent presented the check to the appellants, who refused to pay it. (This so-called presentment was made in July, 1933.) At the close of respondent’s case, appellants challenged the sufficiency of the evidence. Appellants’ position is that an action cannot be had against the drawer of a check without allegation and proof of presentment and demand on the drawee. The principle so asserted seems to be supported by unanimous authority; at any rate, none to the contrary has been called to our attention. Wachtel v. Rosen, 249 N. Y. 386, 164 N. E. 326, 62 A. L. R. 374; First Nat. Bank of Belle Plains v. McConnell, 103 Minn. 340, 114 N. W. 1129, 14 L. R. A. (N. S.) 616, 123 Am. St. 336; Haynes v. Wesley, 112 Ga. 668, 37 S. E. 990, 81 Am. St. 72; 5 R. C. L. 544; Rem. Rev. Stat., § 3452 [P. C. § 4132], In 3 Daniel on Negotiable Instruments (7th ed.) 1809, § 1771, it is said: “It is the general rule, in respect to checks, that the holder has no recourse upon the drawer until the check has been presented to the bank, and payment refused; and such presentment and refusal are essential preliminaries to an action against him.” In a note on the same page, we find: “The Negotiable Instrument statute has not changed the rule that the holder of a check payable to his order *367 cannot bring suit against the drawer without proving presentment to the drawee and refusal of payment (Appendix, secs. 70, 185). Rodrigeux v. Hardouin, 15 La. App. 112, 131 So. 593. Unless the drawer has stopped payment. Patterson v. Oakes, 191 Iowa, 78, 181 N. W. 787. The difference between the drawer of a check and the maker of a note is that the latter is primarily liable on the instrument, while the former is not (Appendix, secs. 61, 192).” But, says respondent, the appellant waived presentment, demand and notice of dishonor. There may be circumstances under which such steps may not be required of the payee, as when the drawer has no right to expect or require that the drawee will honor the instrument, or when the drawer has countermanded payment. Brannan’s Negotiable Instruments Law (5th ed.), § 114. The burden, however, is on the plaintiff, in such cases, to allege and prove such facts as will establish a waiver. Galbraith v. Shepard, 43 Wash. 698, 86 Pac. 1113. There are no such allegations in the complaint. Nor do we find evidence of any word, act or conduct on the part of appellant tending to establish a waiver. When the check was presented to him in 1933, he simply refused to pay it. Respondent contends that failure to present a check to the drawee does not release the drawer, unless he sustains loss or injury in consequence of such failure; that no loss or injury is shown by appellants. A number of cases are cited which, it is asserted, support this contention. Morris-Miller Co. v. Von Pressentin, 63 Wash. 74, 114 Pac. 912, is typical. These cases, however, go only to the extent of holding that the debt, which the check was designed to pay, is discharged only to the extent that the drawer has sustained loss by the failure or negligent delay of the payee to present the check to the drawee for payment. The issue of loss or injury to the drawer in these cases arises *368 when he claims the debt is discharged by reason of negligent delay of the payee in presenting the check for payment. See Peninsula Nat. Bank v. Pederson Const. Co., 91 Wash. 621, 158 Pac. 246. Such cases do not in any degree encroach upon the rule that presentment, demand and notice of dishonor are essential prerequisites to an action against the drawer on a check. And that is what this action is. It is not an action on any debt which the check may have been designed to discharge. Finally, respondent seeks to sustain the judgment on the ground that the sufficiency of the complaint and evidence cannot be reviewed in this court. This contention is predicated on the fact that no demurrer was interposed to the complaint and no argument was made in support of the challenge to the sufficiency of the evidence. In support of her position, respondent cites Rose v. Pierce County, 25 Wash. 119, 64 Pac. 913, where it was held that the county could not, for the first time, in this court object that there had been a failure of allegation and proof of the filing of a claim. This holding was predicated on the theory that the complaint was capable of amendment. Under the facts found in this ease (to-wit, that the check had not been presented to the drawee), the complaint could not be amended so as to state a cause of action, because respondent herself testified that the check had never been presented to the drawee. The challenge to the sufficiency of the evidence raised the issue in the court below. O’Day v. Ambaum, 47 Wash. 684, 92 Pac. 421, 15 L. R. A. (N. S.) 484; Ward v. Magaha, 71 Wash. 679, 129 Pac. 395; Hamilton v. Johnson, 137 Wash. 92, 241 Pac. 672. In the case first cited, this court, construing what is now Rem. Rev. Stat., § 263 [P. C. § 8350], said: “Bal. Code, § 4911 (P. C. § 378), provides that the objection that the complaint does not state facts suffi *369 cient to constitute a cause of action can be made at any stage of the proceedings. This court, however, has held that a defendant’s failure to interpose a demurrer to a complaint, followed by an objection to its sufficiency made for the first time at the trial, will cause the court, in passing upon such objection, to bring to the support of the complaint every reasonable intendment and legitimate inference that may be drawn from its allegations, and also from the evidence adduced to sustain the plaintiffs’ cause. If, on an application of this test, it appears that the defect in the plaintiffs’ complaint and cause of action is one of substance which cannot be cured by amendment or evidence, then it is the duty of a trial court to sustain the objection and dismiss the action.” Applying the test to the facts disclosed by this record, the challenge to the sufficiency of the evidence must be sustained. The judgment is reversed and the cause remanded, with directions to dismiss. Millard, C. J., Main, Mitchell, Steineet, and Geraghty, JJ., concur.