Cannonsburgh Iron Co. v. Union National Bank

Opinion by Mr. Chief Justice Mercur: We concur in opinion with the learned judge, that the receipt by the defendant in error, of the cashier’s check on the Penn Bank, and the cotemporaneous delivery of the note to the maker thereof, was a conditional payment, only, of the note. The check was taken for a pre-existing debt. The case stated does not aver any agreement that it was to be accepted as an absolute payment. The burden of proof was on the maker of the note to overthrow the presumption that the check was taken as a conditional payment. It was of no higher character than the note, and it certainly was not money. Brown v. Scott, 51 Pa. 357; League v. Waring, 85 Pa. 244; Miller v. Lotz, 15 Pittsb. L. J. 139. A case stated is in the nature of a special verdict. Pacts must be stated, and not left to inference. What is not stated must-be presumed not to exist. Berks County v. Pile, 18 Pa. 493. Due diligence was used in presenting the check on the next business day after it was received, and payment thereof was demanded and refused. Thereupon, on the same day, the check was duly protested for nonpayment, and the plaintiff in error was duly notified of the presentment, demand, and refusal. Payment of the note was demanded, accompanied with an offer, on its payment, to return the check. The cheek not having been taken as a payment, and nothing having been realized thereon, the plaintiff in error has no just cause to complain of this judgment. Judgment affirmed.