Burns v. Yocum

McCulloch, J., (after stating the facts.) In the trial of this case below the parties ignored some of the issues presented by the pleadings, and introduced proof directed to other issues. There being no objection to this, the court treated the pleadings as amended to conform to the proof. The plaintiff introduced no testimony tending to establish the allegations of the complaint that the defendant had no funds in bank to pay the check and misrepresented that fact to induce plaintiff to accept the check in payment of the note. The court, in the instructions given.at the request of plaintiff, based the defendant’s liability upon his alleged promise, when he delivered the check to plaintiff, to pay it in the event of the failure of the bank to pay on presentation, and on the fact that when the check was received by the cashier of the bank and the deposit slip issued to plaintiff the amount was not passed to her credit on the books of the bank. These instructions assumed that defendant’s alleged promise to pay the amount in the event of the failure of the bank to pay on presentation of the check was a waiver of presentation for payment within a reasonable time, and made him liable for the failure of the bank to pav at any time. They also assumed that the check was not paid by the bank by issuance of the deposit slip, because the amount was not credited to plaintiff on the books of the bank. The instructions were erroneous for these reasons. The promise of the defendant to pay the amount in the event of the failure of the bank to pay on presentation of the check added nothing to his obligation, and was not a waiver of his right to have the check promptly presented by the plaintiff. “A check, like a bill of exchange, must be presented for payment within a reasonable time, and what is a reasonable time will depend upon the circumstances of the particular case. In the absence of special circumstances excusing delay, the reasonable time for presenting a check, where the person receiving the same and the .bank on which it is drawn are in the same place, is not later than the next business day after it is received; and where they are in different places, reasonable diligence requires the check to be forwarded to the place of payment not later than the next business day after it is received by the payee, and presented not later' than the day after it is there received. Inexcusable delay will discharge * * * the drawer from liability if he is injured by the delay.” 7 Cyc. pp. 977-979; Same, pp. 531, 532; Tiedeman on. Com. Paper, § 443; Minehart v. Handlin, 37 Ark. 276; Morris v. Eufeula, Nat. Bank, 122 Ala. 580; Kilpatrick v. Home B. & L. Assoc., 119 Pa. St. 30; Hamlin v. Simpson, 105 Iowa, 125, 44 L. R. A. 397; Anderson v. Rodgers, 53 Kansas, 542, 27 L. R. A. 248. In this case there was a delay of five days (excluding Sunday) in presenting the check for payment, and no excuse for the delay is shown to have existed. This was sufficient to discharge the drawer when presentation within a reasonable time was not waived. An unreasonable delay taken by the drawer for his own convenience in presentation of the check is at his own risk. The plaintiff’s acceptance of the deposit slip or receipt, which turned out to be worthless, instead of demanding the cash in payment of the check, placed the loss upon the plaintiff as a result of the negligence of her agent in so doing. Loth v. Mothner, 53 Ark. 116; O’Leary v. Abeles, 68 Ark. 259, and cases cited. It is immaterial that the cashier or other employees of the bank did not place the deposit to the credit of plaintiff on the books of the bank. The surrender of the check and acceptance of the deposit receipt, instead of demanding the cash, was an election to accept payment in that way. The oral agreement alleged to have been entered into by appellant after the deposit of the check is void under the statute of frauds because not supported by a new consideration. Kurts v. Adams, 12 Ark. 174; Hughes v. Lawson, 31 Ark. 613; Chapline v. Atkinson, 45 Ark. 67; Killough v. Payne, 52 Ark. 174. The instructions of the court were erroneous, and the verdict is not sustained by the evidence. So the judgment is reversed, and the cause remanded for a new trial.