Hoyt v. Seeley

Waite, J. The plaintiff offered in evidence the check, described in the first count in the declaration, proved that it was signed by the defendant, and claimed to have proved, that it was also delivered to him, by the defendant. On the — 357 — other side, it was insisted, that the plaintiff could not recover upon that count, unless he proved a delivery by the defendant - to Waterbary, and by Waterbary to the plaintiff, as alleged. But the court informed the jury, that the plaintiff might recover, without proof of those facts. Was that instruction erroneous l The rule upon this subject is, that a party may declare upon an instrument according to its legal effect. Phelps v. Riley, 3 Conn. R. 266. Sherman v. Goble, 4 Conn. R. 246. Fish v. Brown, 17 Conn. R. 341. Thus, if a promissory note is payable to a man’s order, he may declare upon it as payable to himgelf. Smith v. McClure, 5 East 476. So if payable to a married woman, it may be described as payable to the husband. Arnold v. Revoult, 1 Brod. & Bing. 443. (5 E. C. L. 141.) And where the payee of a bill indorses it in blank, and puts it into circulation, any holder may declare upon the bill as indorsed by the payee to himself, although there may have been intermediate indorsements. Smith & al. v. Clarke, Peake’s Cas. 225. 3. C. 1 Esp. Rep. 180. The defendant, by making the check payable to Water-bary, or bearer, made it transferable by mere delivery; and by delivering it himself to the plaintiff, made the transfer, as between the parties, of the same legal effect, as if delivered to Waterbary, and afterwards by him to the plaintiff. In this respect, the case differs materially from that of a check payable to the order of the payee. There, the legal title would pass only by indorsement; and where there are several successive indorsements alleged in the declaration, the plaintiff must prove them as alleged ; for they are essential to show the title lie, claims, Cunliffe & al. v. Whitehead, 3 Bing. N. C. 828. (32 E. C. L. 343.) Here, the plaintiff has declared upon this check as payable to bearer, and has averred, that lie is the lawful bearer thereof, and entitled to the payment of the money therein specified. This is enough to show a right of action in the plaintiff. The circumstances, under which he became the bearer, are not material, and therefore need not be proved. If, says Denman, Ch. J. we can see enough in a plea to constitute a defence, independently of superfluous allegations, we may reject them, and treat them as if they had not been there. Shearm v. Burnard, 10 Ad. & El. 593. (37 E. C. — 358 — L. 184.) And the same rule applies to superfluous matter in the declaration. Tanner v. Bean, 4 B. & Cres. 312. (10 E. C. L. 340.) Here is no claim of any variance in the description of the check, or any indorsement upon it, but only in the manner in which it was delivered to the plaintiff. That cannot be material, if the main allegations, that he is the lawful bearer, and entitled to the moneys due thereon, are proved. 2. The defendant further claimed, that if he signed the check, he never put it in circulation, and so the plaintiff could not recover upon it, even if he had taken it bona fide, and for value. But the circumstances under which this claim was made, are not detailed in the motion. The virtual admission by the defendant, that the check was received by the plaintiff fairly and for value, seems to imply, that it was, in fact, put in circulation. By whose instrumentality it was done, does not appear, farther than it was not done by the defendant himself. Suppose the defendant, after he had made and signed the check, had placed it in the hands of some third person, for a specific purpose, with positive instructions not to let it get into circulation ; and yet that person, in violation of the trust reposed in him by the defendant, had passed it away, as his own, to the plaintiff, who was entirely ignorant of any breach of trust; could the defendant, under such circumstances, successfully resist the payment ? This court, very recently, had occasion to examine the law applicable to this subject, and after a very careful review of the authorities, said, that “ where a person has confided his name on a note or bill to a servant or friend, and thus enabled him to appear to the world as owner, and as having a lawful right to dispose of it, if that confidence is misplaced, the principles of equity, as well as of commercial law, require, that he who has thus put it into the power of another to defraud, should himself sustain the loss, rather than the person who has given credit to these appearances.” Brush v. Scribner, 11 Conn. R. 392. And what facts has the defendant shown, in this case, which will preclude the inference, that although he has not himself given circulation to the check, it has not been done, by some person, in consequence of his misplaced confidence ? — 359 — The result would be precisely the same, had the person with whom he entrusted the check lost it, or i^had been stolen from - him. Lee v. Newsam, Dowl. & Ryl. N. P. Ca. 50. (16 E. C. L. 431.) The proposition, therefore, as advanced by the defendant, is not, in all cases, true ; and as he has not shown such facts as will require its application, even in a qualified form, we cannot say that the judge erred in not instructing the jury in conformity with his claim. Churchill v. Rosebeck, 15 Conn. R. 399. The jury were informed, that if the defendant signed the check, and it came into the hands of a bona fide holder, the presumption of law was, that it was issued by the drawer, unless the contrary was shown by him. This instruction was entirely correct; and the propriety of it is not questioned, by the defendant. His only complaint is, that the court did not go far enough in its instruction. This, under the circumstances, we have shown the court was not bound to do. 3. The plaintiff did not present the check to the bank for payment, until after the lapse of more than two years from the time lie received it, and entirely omitted to give any notice to the defendant of the non-payment. The defendant claimed, that the plaintiff could not recover, by reason of this delay in the presentment, and the omission to .give notice. The plaintiff, however, claimed to have proved, that the defendant never had funds in the bank, sufficient for the payment of the check, before it was protested, except at one time ; and that on the following day, they were drawn out by the defendant himself. And it was not claimed, that the bank was insolvent, or in any manner embarrassed. Under these circumstances, the court instructed the jury, that the delay in the presentment was no ground to defeat a recovery; and that if the defendant had no funds in the bank to meet the payment, when it was presented, notice of non-payment was not necessary. This part of the case involves this question, whether, if the defendant, after he had drawn the check, had no funds in the bank, and has sustained no loss or injury from the delay in the presentment, and by the omission to give notice of the nonpayment, he can now successfully resist the payment of the debt. — 360 — The rule undoubtedly is, that it is the duty of the holder of a check, payable at bank, on demand, to present it for payment within a reasonable time, and if not paid, to give notice of the non-payment to the drawer. And if the drawer had funds in the bank sufficient for its payment, which were lost in consequence of the holder’s neglect, he will be exonerated from liability. But according to recent authorities, this rule does not apply to a case where the drawer has sustained no loss or injury, by the neglect of the holder. Were it otherwise, the drawer would profit by a neglect, which did him no injury. Every check drawn upon a bank, is presumed to be given for value, and is an appropriation of so much of the drawer’s funds in the bank, as are necessary for the payment of the draft. If, therefore, the maker can be permitted to withdraw his funds, and refuse payment of his check, he virtually receives from the holder the amount of it, without consideration. The result would be the same, if he never placed any funds in the bank to meet the payment. Such, at present, is the law, as recognized in the state of New- York. The supreme court of that state, in a late case, cited with approbation the opinion expressed by Southerland, J. in Murray v. Judah, 6 Cowen 490. in which he says, that “ as between the holder of a check, and an indorser, or third person, payment must be demanded within a reasonable time ; but as between the holder and maker or drawer, a demand at any time before suit brought, is sufficient, unless it appear, that the drawee has failed, or the drawer has in some manner sustained injury, by the delay.” And they add, that the same doctrine has been fully recognized as sound law, in several subsequent cases, and is so laid down in their highest elementary authority. Little v. Phenix Bank, 2 Hill’s R. 429. So, in a late case in the court of common pleas in England, the plaintiffs brought their action upon a check payable at a bank, against the drawer, and averred, that the bank had no effects of the defendant in their hands, and had received no consideration for the payment of the check, and that the defendant had sustained no injury, by reason of his having had no notice of its non-payment; and the court, upon demurrer, held the declaration sufficient. Kemble v. Mills, 1 Man. & Gran. 757. (39 E. C. L. 640.) And in a still more recent — 361 — case, Lord Tenterden said, that “ in the case of a check, the holder does not lose his remedy against the drawer, by reason of non-presentment, within any prescribed time after taking it, unless the insolvency of the party on whom it is drawn has taken place in the intervalthat is, unless there is actual loss to the drawer.” Alexander v. Burchfield, 7 Man. & Gran. 1001. 1067. (49 E. C. L. 1061. 1067.) These authorities, standing uneontradicted, are full in support of the charge given by the court below, and founded upon correct principles. We are, therefore, of opinion, that (he defendant is not entitled to a new trial in this case. In this opinion the other Judges concurred. New trial not to be granted.