First National Bank v. Dowie

McAdam, Ch. J. The surrender of the draft was in the first instance a good consideration for the check, but the action of the plaintiff, when it was informed of the defendant’s mistake and act, destroyed the effect of the exchange made. The plaintiff acquiesced in' the defendant’s claim' that he had made a mistake, and consented to rectify it if he would return the draft. The defendant thereupon returned the draft, and the acceptance of it effectually rescinded what had previously been done (Coon v. Reed, 1 Hilt. 511; Collins v. Brooks, 20 How. Pr. 32). The giving of the check did not pay the draft; nothing short of payment of the check could operate as payment of the draft (Burkhalter v. Second National Bank, 40 How. Pr. 324). The defendant did not intend to pay the draft; he made a mistake, which the plaintiff consented to rectify. The plaintiff accepted a return of the draft, and ought to have returned the defendant’s check. The plaintiff has lost nothing by the act of the defendant, nor has it in consequence altered its position. The defendant testified that he had no funds belonging to the drawer of the draft; on the contrary, that the drawer was indebted to him. While the payee of the draft is presumably a bora fide holder thereof for value- and the plaintiff, as 427 trustee of an express trust, represents such holder, there is nothing implied from this circumstance that requires the defendant to accept or pay the draft against his will. The equities are all with the defendant, and he is entitled to judgment.