Gordon v. Levine

Loring, J. The only question before us in the case at bar is that raised by an exception to the refusal to give the following ruling asked for by the plaintiff: “If the check was delivered on Sunday it was invalid and had no legal effect, and the plaintiff is entitled to recover on his count for money ” lent. It is true that, “ if the check was delivered on Sunday, it was invalid and had no legal effect,” and that the plaintiff could not have recovered if he had brought suit on it against the defendant on non-payment by the bank after a presentment within the proper time. Stevens v. Wood, 127 Mass. 128. But it does not follow that “ the plaintiff is entitled to recover on his count for money ” lent-. A defence to the count for money lent would have been made out if the plaintiff had received the $100 from the bank on presenting the check to it for payment. It was decided in Johnson v. Willis, 7 Gray, 164, that a payment made on Sunday is a defence to an action for the recovery of the debt so paid. To the same effect see Cranson v. Goss, 107 Mass. 439, 441; Leonard v. Travis, 6 Allen, 129, 130; Clapp v. Hale, 112 Mass. 368, 370. In the case we have supposed, where the plaintiff received his $100 from the bank on presenting the check for payment, it is true that the defendant could not make out his defence without showing an infraction of the Sunday law. But that is equally true where the debt is paid on Sunday in cash. As was said by Metcalf, J., in Leonard v. Travis, 6 Allen, 129, 130: “ A debtor violates the law by paying the debt on Sunday. So does the creditor by receiving it on that day; but he cannot enforce a second payment. Johnson v. Willis, 7 Gray, 164.” The distinction established by the cases in this Commonwealth is this : The court will not aid a party to recover on a Sunday transaction on the one hand; but on the other hand it will not [266] treat as a nullity what was done on Sunday in performance of a valid contract; it will give to the act done on Sunday its legal effect when'set up in defence. This is made clear by the language of the opinions in Johnson v. Willis, 7 Gray, 164, Cranson v. Goss, 107 Mass. 439, 441, and Leonard v. Travis, 6 Allen, 129, 130, and it is established by the decision in Clapp v. Sale, 112 Mass. 368. In that case it was decided that while a part payment on Sunday was effectual as payment pro tanto it did not take the note out of the operation of the statute of limitations. To come to the case at bar the plaintiff in fact got his $100 by “ negotiating ” the check, and the result is the same as if he had received the money from the bank. It appears from the bill of exceptions that when he “ negotiated ” the check on Monday he received from the indorsee the $100 called for by it. It is stated that when the check was returned to the plaintiff he “returned the $100 which he had received upon the negotiation of said check.” But that fact is of no consequence. The check was a valid check in the hands of the purchaser to whom it was negotiated on Monday. A negotiable instrument void because delivered on Sunday is valid in the hands of a bona fide purchaser for value without notice. Cranson v. Goss, 107 Mass. 439. The statute (as to the rights of a purchaser of a negotiable instrument payable on demand) in force when Stevens v. Wood, 127 Mass. 123, was decided, was repealed by the negotiable instruments act, now R. L. c. 73, § 70. The purchaser of this check from the plaintiff lost his rights against the plaintiff (the payee who indorsed it to him) when he failed to present it within a reasonable time, for the same reason that he lost them against the drawer; as to which see Gordon v. Levine, 194 Mass. 418. It follows that the repayment of the $100 on the check being “ returned in due course,” was a voluntary payment which the plaintiff was not bound to make. Further, if the plaintiff, in place of negotiating the check, had kept it until it was presented on Friday, when it was too late, (see Gordon v. Levine, 194 Mass. 418,) and (because it was presented too late) the check was not paid and the money was lost, the result would have been the same. In that case he. [267] could have had his money had he presented the check within the proper time; and since in that case the money was lost through his neglect in not presenting the check within a reasonable time, he cannot stand in a better position than he would have stood in had he acted with due promptness. The only apparent explanation for the plaintiff’s returning the $100 on the return of the check was that in spite of the facts stated above the check was not “ negotiated ” to a bona fide purchaser, but was “ negotiated ” to his own agent. If it was, the neglect to present the check within a reasonable time was the plaintiff’s own neglect. Since the judge in the case at bar may have found (1) that the plaintiff received the $100 called for by the check, or (2) that he might have received it but for his own neglect, he was not bound to give the ruling asked for. See in that connection Swett v. Southworth, 125 Mass. 417; Whitney v. Esson, 99 Mass. 308. The entry must be Exceptions overruled.