Place v. McIlvain

By the Court. Daly, F. J. After the note in suit had matured and was under protest, Nichols, the maker, sent a check to the plaintiffs dated ten days ahead. The plaintiffs kept the check until about the time of its maturity, when they deposited it in their bank, expecting, as one of them testified, that it would be paid. As to these facts there is no conflict, the conflict being upon the question, whether there was or "was not an express promise to give time. Admitting, in consonance with the finding of the jury, that there was no express agreement, still the question remains, whether the acceptance of the check and the retaining of it until maturity, the depositing it in bank, with the expectation that it would be paid, were not acts sufficient on the part of the plaintiffs to show that there was an implied agreement to wait for payment until the maturity of the check, and if there was, then the indorsers of the note were discharged. It is a general rule, that if the creditor takes a bill or note for the amount of his debt, payable at a future day, it suspends the remedy on the original debt until tile note or bill falls due. (Stedman v. Torch, l Esp., R, 5; Putnam, v. Lewis, 8 Johns., 389 ; Fellows v. Prentiss, 3 Den., 518; Geller v. Seixas, 4 Abbott 104; Hart v. Hudson, 6 Duer, [271] 305; Platt v. Stark, 2 Hilton, 399.) .And the acceptance of a" check dated at a future day, and which consequently is not payable until that day arrives, must be regarded as having the same effect. In Bangs v. Mosher, 23 Barb. 478, a collector of moneys, who had given a bond with sureties for the faithful performance of his duties, accounted with the obligees for certain moneys he had collected, and they took his check for the amount,payable at a future day. It was held that the sureties were discharged, the only difference between the check in that case and in this being that kere it was dated as of a future day, while there it was expressly made payable at a future day, a distinction which is not material, at least in this country, in respect to its character as a negotiable instrument. If it had been shown that the check in the case had been taken merely as collateral, (Taylor v. Allen, 36 Barb. 298.) or if there had been any evidence warranting the conclusion that it was not the intention of the parties that it should operate to extend the time of payment npon the original debt, It would, of course, not have that effect; but where all that appears is that a creditor, after a note becomes due, takes from the maker a new note, a bill or a check, for the amount of it, payable at a future day, the conclusion must he that the parties have agreed to extend the time of credit upon the original note until the suppletory instrument becomes -payable, and if such an agreement is founded upon a sufficient consideration, it is binding. A very slight consideration will suffice. If a note is given upon an account, or for goods sold, the demand is thereby liquidated, which is a benefit to the creditor, or if after a note is due, a new note, a hill or a check for the amount of the debt is taken from the maker payable at a future day, the creditor acquires a negotiable instrument, which may be used more beneficially than a note which is past due, and these advantages constitute a sufficient consideration to support such an agreement. Meyers v. Wells, 5 Hill, 464. In this case, the check was sent to the plaintiffs .enclosed in a letter, and the question whether there was or was not an implied agreement to give time depends upon what was communicated in the letter, and what the plaintiffs did after they received it. Hichols states in the letter that he encloses the check for the amount of the note which he refers to as then under protest. [272] He requests them to fceep the check and says that when it is paid, he will call for the note. After this statement he continues : “ If you will accept this, you will confer upon me a' wry great favor,” closing with the suggestion, that if they had been put to any expense in consequence of their not getting the money at maturity, he would reimburse them. It is very plain what is meant by the “ great favor ” here -referred to. It is manifestly delay—the postponement of payment'for the ten days which the check had to run. It is capable of no other interpretation. Advised then by this note of what Nichols requested, what did the plaintiffs do % By their own showing, they kept the check, and immediately before it matured. deposited it in their bank for collection, expecting, as one of them testified, that it would be paid. There is no pretence on their part, and both of them were examined as witnesses, that any intimation was given to Nichols that his request would not. be complied with, nor was anything further done by them, except to ask the advice of their lawyer, the nature of ■which was not disclosed, as it was objected to, and ruled out. The conclusion from this uncontroverted state of facts, in my judgment, must be that they acceded to the request made to them; by their silence after the receipt of the letter, and by depositing the chock in their bank for collection, they meant to and did give Nichols the additional time asked for in the payment of the debt. From such a state of facts, an implied agreement to give time is to be inferred as matter of law. The Judge charged the jury that merely retaining the custody of a check payable at a future day, sent to the holder of a note by the maker, where it is shown, either by positive testimony or by circumstances, that such retention was not intended by either party as an extension of the time of payment, and that both so understood it, would not so operate ; but that such an intention, however, must have been either actual or" expressed, or the circumstances attending the receipt of the check must have been such as would fully justify the presumption that both parties so understood the act, before the intent would be regarded as having existed, and.he-left it to the jury to deter- • mine as to the intent which controlled the plaintiff in accepting the check, and told them that if it was retained without any intention to give time to the maker, and that until it matured [273] they did not by any act of theirs indicate that they meant to hold it as their own property, the liability of the defendants as indorsers was not affected by it, and the plaintiffs must recover. Where a cpiestion stands doubtful upon an uncontro verted state of facts, or where, as sometimes happens, the facts will admit of either of two conclusions, the proper course is to leave the solution of the question to the jury, and their determination is controlling and final. But such was not the case here. The plaintiffs retained the check, and there was nothing on their part to show an intention that the retaining of it was not to-have the effect of extending the time of payment until the check became due, nor any circumstances attending the retention of it that would warrant any such presumption, and if there was not, then there was nothing for the jury to pass upon; but the question upon the facts proved was a question of law. James K. Place testified that he never made any agreement or arrangement with Nichols in respect to the check, and that when it was received he called upon his counsel to take their advice upon the subject; but this does not affect the legal conclusion that follows from the nature of the request contained in the letter, from the plaintiffs’ retaining the check and depositing it in their bank for collection. On a trial, and especially in a case like this, where there was a conflict of evidence as to whether there was. or was not an express agreement, it is always safer to leave the question to the jury under proper instructions as to the law, which the Judge did; but the difficulty in this case is that the defendants requested the Judge to charge the jury to find a verdict for the defendants upon the ground that the taking of the check of Kichols, although without any express promise to wait, was a suspension of the plaintiff’s right to recover against him on the note, and was a discharge of the endorsers, which upon the facts of the case, 1 think they were entitled to, and which the Judge refused. A new trial in my judgment should be granted.